Gustave v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARCKENLEY GUSTAVE, §
§ No. 382, 2024
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 2101006788 (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: May 21, 2025
Decided: July 29, 2025

Before VALIHURA, TRAYNOR, and GRIFFITHS Justices.

Upon appeal from the Superior Court. AFFIRMED.

Eugene J. Maurer, Jr., Esquire, Molly R. Dugan, Esquire, EUGENE J. MAURER, JR.,

P.A., Wilmington, Delaware for Appellant.

Andrew R. Fletcher, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Wilmington,

Delaware for Appellee.

VALIHURA, Justice:
I. INTRODUCTION

After Marckenley Gustave was accused of sexually assaulting his eleven-year-old

cousin, I.G., he reached out to the police. During his recorded interview with Detective

Phillips, Gustave made incriminating statements, indicating that he was scared after I.G.

was taken to the hospital and that he had slept in I.G.’s bed with her on at least five

occasions. He offered no explanation for doing so. When Gustave later testified in his

own defense at trial and made contradictory statements, the State offered one short video

clip of his recorded interview during its cross-examination of him. The State later offered

both this video clip and another short video clip in its rebuttal case during direct

examination of Detective Phillips and referenced the contents of the video clips during

closing arguments. The State did not move to have the video clips admitted as State’s

exhibits until after the close of evidence, and the trial court ruled that they would be court

exhibits. After the trial court discovered that due to a clerical error, the video clips had

been mistakenly given to the jury, it promptly removed the video clips and gave the jury a

curative instruction. The trial court denied Gustave’s immediate motion for a mistrial.

The jury convicted Gustave of three counts of Rape First Degree and three counts

of Unlawful Sexual Contact First Degree. Gustave timely moved for a new trial on the

same grounds, which the trial court also denied. Gustave was sentenced to 81 years of

incarceration and now appeals his conviction. We conclude that the trial court applied the

correct standards to evaluate Gustave’s motions, and we agree that Gustave failed to

demonstrate the required prejudice. Accordingly, we AFFIRM Gustave’s convictions.

2
II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On January 13, 2021, eleven-year-old I.G. told her mother for the first time that

Marckenley Gustave, the mother’s 22-year-old cousin, had been raping her.1 I.G. moved

to the United States from Haiti when she was in third grade. She first lived in New Jersey

and then in Delaware, where she finished elementary school.2 Gustave had been living

with I.G. and her mother since shortly after I.G. moved to Delaware, while I.G. was still in

elementary school. Because I.G.’s mother worked the swing shift, from approximately

3:00 in the afternoon until midnight each day, I.G. was often home alone with Gustave after

school.

I.G. testified about five separate occasions when they were home alone together and

Gustave sexually assaulted her. The sexual assaults began when I.G. saw Gustave

masturbating in the living room while he was watching pornography.3 In the first incident,

after I.G. saw Gustave masturbating, Gustave asked her if she wanted to touch his penis,

wrapped her hand around his penis, and had her put her mouth on his penis.4 Gustave

pushed her head down, but I.G. stopped when he ejaculated because she did not like the

1
App. to Opening Br. at A50, A60. There was some confusion about I.G.’s age as of January 2021
in the briefs and in her trial testimony, but I.G. testified clearly that her date of birth is August 26,
2009. Id. at A50 (I.G. Test.).
2
Id. at A50–52 (I.G. Test.).
3
Id. at A63 (I.G. Test.).
4
Id. at A64 (I.G. Test.).

3
taste of semen.5 After this incident, Gustave purchased gum for I.G. to use when

performing oral sex on him.6 Gustave also communicated with I.G. via text about their

sexual contact, asking her if she wanted to engage in sexual activities when he got home

and offering to buy her gum because he knew she did not like the taste of semen.7

In the second incident, Gustave got into bed with I.G., put his mouth on her breast,

and wrapped her hands around his penis.8 In the third incident, Gustave found I.G. in her

bedroom, asked if she wanted to “try something,” then removed their clothes and partially

inserted his penis into her vagina.9 In another incident, Gustave made her bend over her

bed and tried to insert his penis into her vagina.10

In the final incident, I.G. was playing video games in the living room when Gustave

asked her, “Do you want to do it?”11 She said no and told him she was on her menstrual

cycle. Gustave then pulled his pants below his knees, removed I.G.’s pants and underwear,

put her on top of him, and tried to insert his penis into her vagina. 12 I.G. told him again

that she did not want to engage in sexual activities with him, got off of him, and went back

5
Id. at A64–65 (I.G. Test.).
6
Id. at A80–81 (I.G. Test.).
7
Id. at A75–76 (I.G. Test.).
8
Id. at A65–66 (I.G. Test.).
9
Id. at A67–68 (I.G. Test.).
10
Id. at A69 (I.G. Test.).
11
Id. at A70 (I.G. Test.).
12
Id. at A72–73 (I.G. Test.).

4
to playing video games. Gustave then inserted two fingers and “played” with her vagina

while he masturbated.13

About a week later, I.G. told her mother about the sexual abuse for the first time.14

After I.G. told her mother, her mother called the police and took I.G. to Nemours Children’s

Hospital to undergo a rape examination.15 I.G.’s physical examination showed no signs of

physical trauma, but her urine and swab tests showed a positive result for chlamydia.16

The next day, Detective Christopher Phillips interviewed Gustave at the police

station.17 During the interview, which was recorded, Gustave told Detective Phillips that

he was afraid because I.G. had been taken to the hospital and that he had slept in I.G.’s bed

on five occasions but could not provide an explanation for doing so.18 While at the police

station, Gustave agreed to provide a urine sample, which also showed a positive result for

13
Id. at A74 (I.G. Test.).
14
Id. at A75 (I.G. Test.). The examining forensic nurse at Nemours Children’s Hospital testified
that I.G. told the examining physician that the last sexual assault had occurred about three days
prior to her examination, on January 10, 2021. Id. at A102 (Gorman-Zolochik Test.).
15
Id. at A170 (Regina Gustave Test.).
16
Id. at A110–11 (Gorman-Zolochik Test.), A134–35 (Deutsch Test.). Gorman-Zolochik, an
emergency and forensic nurse at Nemours Children’s Hospital, testified that “[i]t’s very typical to
have no signs or trauma following any form of sexual assault.” Id. at A111 (Gorman-Zolochik
Test.). With respect to the chlamydia testing, Dr. Deutsch explained that “the initial study that is
run by the Nemours lab is referred to as a screening test, and then there’s a subsequent confirmatory
test that’s a second test that’s run on the sample that is processed by an external lab.” Id. at A135
(Deutsch Test.). The second test on the same sample done by an external facility “eliminates the
possibility that the lab test is inaccurate.” Id. (Deutsch Test.).
17
Id. at A213 (Phillips Test.).
18
Id. These two statements to Detective Phillips comprise the two short video recordings that
were played at trial and marked as Court Exhibits 1 and 2.

5
chlamydia.19 After Gustave’s interview, he abandoned his job and the police could not

locate him for approximately three weeks.20 On February 4, 2021, a detective with the U.S.

Marshal’s Fugitive Task Force found Gustave and arrested him.21

B. Procedural Background

On October 11, 2021, a New Castle grand jury indicted Gustave on three counts of

Rape First Degree, one count of Rape Second Degree, and two counts of Unlawful Sexual

Contact First Degree. The Superior Court held a five-day jury trial that began on June 22,

2023. During the trial, I.G. testified about the sexual assaults and Gustave’s related text

messages to her.

Gustave chose to testify in his own defense.22 As an explanation for why he slept

in her bed, he testified that he and I.G. would often play video games together and that he

would sometimes fall asleep while playing video games with her.23 He also testified that

he was not aware that I.G. had been taken to the hospital on the date of his interview with

Detective Phillips and so, he would not have evaded the police for that reason.24

On cross-examination of Gustave, and in order to impeach the truthfulness of

Gustave’s testimony about why he slept in I.G.’s bed with her, the State introduced a short

video clip of Gustave’s statement recorded during his January 2021 interview with

19
Id. at A211 (Gustave Test.).
20
Id. at A180–81 (Cahall Test.), A181–82 (Rafferty Test.).
21
Id. at A181–82 (Rafferty Test.).
22
Id. at A199–212 (Gustave Test.).
23
Id. at A203 (Gustave Test.).
24
Id. at A210–11 (Gustave Test.).

6
Detective Phillips.25 In its rebuttal case, the State recalled Detective Phillips to the stand

and presented two short video clips of Gustave’s interview statement to support Detective

Phillips’s testimony that Gustave said he was scared after he was informed I.G. had been

taken to the hospital and that Gustave offered no explanation for sleeping in I.G.’s bed with

her.26

The next day, which was the final day of trial, the State moved to admit the video

clips as State exhibits.27 Gustave objected because the evidence was already closed. He

also objected because the evidence was offered, in his view, solely as impeachment

evidence, which does not typically go back with the jury during deliberations.28 The State

responded that defense counsel was advised about the video clips before they were

presented during trial and did not object, so there could be no prejudice, and that defense

counsel had the opportunity to cross-examine on the video clip evidence.29 The State

further argued that although one of the video clips was initially offered as impeachment

evidence during Gustave’s cross-examination, both video clips were later offered

substantively through direct testimony of a State’s witness, but that if the court wanted to

mark the video clips as a court exhibit that would be “fine.”30 After defense counsel

25
Id. at A209 (Gustave Test.). This first video clip was forty seconds long.
26
Id. at A213 (Phillips Test.). One of the two video clips was the same forty-second video clip
that had previously been shown to the jury during Gustave’s cross-examination and the other was
a seventeen-second video clip.
27
Id. at A218.
28
Id.
29
Id.
30
Id.

7
responded again that the State “could have played it before Mr. Gustave’s testimony and

offered it substantively but they did not,” the trial court agreed with defense counsel that

the video clips would be marked as court exhibits.31

The jury began deliberations later the same day, on June 29, 2023. After about two

hours, it came to the trial court’s attention that the two video clips had been mismarked as

State’s exhibits and went back with the jurors, who then watched the video clips “a few

times.”32 The trial court promptly notified the State and Gustave. The State asked for a

curative instruction, and Gustave immediately requested a mistrial.33 The trial court

initially said that it was not going to declare a mistrial at that point but that counsel could

research whether a mistrial would be warranted, and in the meantime, the court would give

a curative instruction so that deliberations could continue.34 After input from the State and

Gustave, the court then gave the following curative instruction to the jury:

There are certain types of exhibits that are marked as State’s exhibits and
certain types of exhibits that are marked as court exhibits. Both are evidence,
but court exhibits are not provided to the jury during deliberations. The two
video clips were marked as court exhibits. Therefore, I instruct you to use
your recollection of the two video clips during trial only, as they were marked
as court exhibits and were not supposed to go back to the jury deliberation
room for further review.35

31
Id. at A218–19, A246. The trial court said only, “I agree, it’s a court exhibit.” Id. at A219.
32
Id. at A239–40.
33
Id. at A240.
34
Id. at A240–41.
35
Id. at A242.

8
After the State and Gustave finished their research, while the jury was still

deliberating, Gustave renewed his request for a mistrial, arguing that the video clips were

extrinsic material that should not have gone to the jury and that there was a danger the jury

would place undue emphasis on the video clips.36 The State responded that the evidence

was properly admitted during trial without objection and that as statements by the

defendant, the video clips were admissible as substantive evidence.37 The State further

argued that there was no prejudice to the defendant for the jury to rehear the statements

because they were made by the defendant, were properly admitted during trial, and could

have been admitted as substantive evidence.38 The trial court denied the motion for a

mistrial, stating that “the standard is that there’s no meaningful practical alternative so the

mistrial is required” but that the court “did not hear that” in Gustave’s argument.39

On June 29, 2023, about an hour and a half after hearing the curative instruction,

the jury returned its verdict and found Gustave guilty of three counts of Rape First Degree

and three counts of Unlawful Sexual Contact First Degree.40

36
Id. at A242–43. Gustave cited this Court’s decision in Flonnery and its progeny to support his
argument. See infra Section IV.
37
Id. at A243.
38
Id.
39
Id. The trial court’s reasoning was stated succinctly: “[W]e’re not at a point where I would
declare a mistrial, if need be. I would like to say, though, in speaking to the standards, the standard
is there’s no meaningful practical alternative so the mistrial is required. In your argument I did not
hear that, so I’m denying a mistrial[.]” Id.
40
Id. at A7, A244. Instead of finding Gustave guilty of Rape Second Degree, the jury found him
guilty of the lesser included offense of Unlawful Sexual Contact, for a total of three counts of
Unlawful Sexual Contact First Degree.

9
On July 7, 2023, Gustave filed a timely motion for a new trial. The State filed its

response on July 28, 2023, and Gustave did not file a reply. The trial court held oral

argument on the motion for a new trial on December 19, 2023. Gustave again argued that

the video clips were “extraneous” material and that it was inherently prejudicial for the

clips to have been sent to the jury room.41 The State renewed its argument that the video

clips were not extraneous evidence and were admitted during trial as substantive evidence

that was not objected to at the time it was offered.42

On January 5, 2024, the trial court issued a bench ruling denying Gustave’s motion

for a new trial.43 The trial court found that the evidence had been properly admitted during

trial without objection and that Gustave had failed to demonstrate actual or inherent

prejudice:

Due process requires a jury’s verdict to be based solely on the evidence
presented at trial, so a defendant is able to fully exercise his or her due
process rights to confrontation, cross-examination.

When extra record information is revealed to the jury which is information
not introduced at trial, a new trial is warranted where the circumstances are
so egregious as to be inherently prejudicial or where the defendant can show
that the misconduct caused actual prejudice. Mr. Gustave has not met either
standard.

Egregious circumstances have been found to be inherently prejudicial when
the jury members were made aware of information not introduced at trial that
related to the facts of the case or the character of the defendant.

41
Answering Br. Ex. A (Defendant’s Motion for a New Trial).
42
Answering Br. Ex. B (State’s Response to Defendant’s Motion for [a New Trial]).
43
Opening Br. Ex. A; see also App. to Opening Br. at A8.

10
As here, where the juror misconduct did not involve communication of
information outside the evidence presented at trial, there was no inherent
prejudice.

The recordings were shown twice during trial without objection; therefore,
the recordings were not extra record information, and there was no inherent
prejudice because the jury did not hear outside information relating to the
facts of the case.44

The trial court similarly found that Gustave had not established actual prejudice:

Here, however, Mr. Gustave made no showing that the recordings going back
to the jury room for deliberation caused actual prejudice. The Court removed
the recordings from the jury room and provided a curative instruction.

A trial judge’s prompt curative instructions are presumed to cure error and
adequately direct the jury to disregard improper statement because jurors are
presumed to follow the trial judge’s instructions.

In addition, the fact that the jury found Mr. Gustave guilty of a lesser-
included charge suggests that they were able, impartial finders of fact.

It was proper for the jury to see the recordings. The error was mismarking
recordings and letting the jury have the recordings to review during
deliberation.

However, the trial lasted approximately two days. The recordings were
viewed in court shortly before deliberations began. Therefore, whether the
recordings were viewed during deliberations or not, the contents of the
recordings would still have been fresh in the jury’s mind. Thus, the court’s
error did not deprive Mr. Gustave of a fair trial.

Because the presence of the recordings during deliberations was not
inherently prejudicial and because Mr. Gustave made no showing of actual
prejudice, Mr. Gustave’s motion is denied.45

44
Opening Br. Ex. A at 6–7 (Trial Court’s Bench Ruling).
45
Id. at 7–8.

11
Although Gustave’s motion for a new trial was denied because he failed to demonstrate

actual or inherent prejudice, the trial court also explained that “a written or recorded

confession, incriminating statement of a defendant properly admitted should generally go

to the jury room during deliberations because of the centrality of the confession or

incriminating admission to the State’s case.”46 As the court explained, “Gustave testified

and made statements that warranted the State utilizing the recordings to highlight the

inconsistencies.”47 The trial court concluded on that point that although it had ruled that

the video clips were to be marked as court exhibits, “the Court still held the discretion on

how to label the recording.”48

On August 16, 2024, the Superior Court sentenced Gustave to: (1) 30 years of

incarceration at Level V, suspended after 25 years for decreasing levels of supervision, for

the first count of Rape First Degree, (2) 25 years at Level V for each of the two additional

counts of Rape First Degree, and (3) eight years at Level V, suspended after two years for

two years at Level III, for each of the three counts of Unlawful Sexual Contact First

Degree.49 This appeal followed.

C. Contentions on Appeal

Gustave raises two issues on appeal: (1) whether the Superior Court abused its

discretion by denying his motion for a mistrial, and (2) whether the Superior Court abused

46
Id. at 9.
47
Id.
48
Id. at 10.
49
These sentences are to run consecutively. Opening Br. Ex. B (Sentencing Order); see also App.
to Opening Br. at A8 (Superior Court Criminal Docket).

12
its discretion by denying his subsequent motion for a new trial. Although these two issues

were framed as one issue with an alternative, the contentions arise from two different

motions with different, although similar, legal standards. Thus, we analyze them separately

below and affirm the Superior Court’s rulings as to each motion.

III. STANDARD OF REVIEW

This Court reviews a “trial judge’s denial of [a defendant’s] motions for a mistrial

and for a new trial for abuse of discretion.”50 This is “because the trial judge is in the best

position to assess the risk of any prejudice resulting from trial events.”51

IV. ANALYSIS

A. The Trial Court Did Not Abuse Its Discretion by Denying Gustave’s Motion for a
Mistrial

This Court has repeatedly held that “[g]ranting a mistrial is an extraordinary remedy,

warranted only when there is manifest necessity and no meaningful and practical

alternatives” to remedy an error at trial.52 “A trial judge is in the best position to determine

whether a mistrial is warranted.”53 This Court has also consistently held that “even when

prejudicial evidence is admitted, its prompt excision followed by a cautionary instruction

50
Flowers v. State, 858 A.2d 328, 332 (Del. 2004) (citing Taylor v. State, 685 A.2d 349, 350 (Del.
1996) (“The decision whether to grant a motion for new trial is within the sound discretion of the
trial court. This decision may be overturned only if there was an abuse of discretion.”).
51
Williams v. State, 296 A.3d 895, 902 (Del. 2023) (quoting Copper v. State, 85 A.3d 689, 692
(Del. 2014)).
52
Id.; Copper, 85 A.3d at 693 (same); Burns v. State, 968 A.2d 1012, 1018 (Del. 2009) (same).
53
Flowers, 858 A.2d at 334–35.

13
will usually preclude a finding of reversible error.”54 We have emphasized that “curative

instructions are meaningful or practical alternatives to declaring a mistrial, and we presume

that juries follow those instructions.”55 “Additionally, prejudice must be egregious when

a curative instruction is deemed insufficient to cure prejudice to the defendant.”56

Gustave first argues that the trial court ruled that the video clips of Gustave’s

interview were solely impeachment evidence that should not go back with the jury during

deliberations.57 Thus it follows, according to Gustave, that the curative instruction was

insufficient to cure any prejudice to Gustave because the jury “was left unaware that the

video clips were not substantive evidence and therefore not admissible to prove the truth

of the matter asserted.”58

Although the trial court agreed with Gustave that the exhibits would be marked as

court exhibits, the court did suggest that it had discretion to admit them as State’s exhibits.

The trial court said only, “I agree, it’s a court exhibit.”59

54
Smith v. State, 913 A.2d 1197, 1221 (Del. 2006) (quoting Sawyer v. State, 634 A.2d 377, 380
(Del. 1993) (citing Pennell v. State, 602 A.2d 48, 52 (Del. 1991))).
55
Sullivan v. State, 26 A.3d 215, 2011 WL 3557783, at *3 (Del. Aug. 12, 2011) (TABLE) (citing
Justice v. State, 947 A.2d 1097, 1102 (Del. 2008); see also Pena v. State, 856 A.2d 548, 551 (Del.
2004) (“Prompt jury instructions are presumed to cure error and adequately direct the jury to
disregard improper statements, even when the error references extraneous offenses.”); Fuller v.
State, 860 A.2d 324, 328 (Del. 2004) (“The jury is presumed to have followed the trial judge’s
instruction and disregarded Officer Rosenblum’s stricken testimony.”).
56
Ashley v. State, 798 A.2d 1019, 1022 (Del. 2002) (citing Bowe v. State, 514 A.2d 408, 410 (Del.
1986).
57
Opening Br. at 9.
58
Id. at 10.
59
App. to Opening Br. at A219.

14
Leading up to this brief ruling, the State first explained that it did not offer the clips

as exhibits during its case-in-chief because it did not have copies of them at that time and,

instead, played them via a laptop. After its case-in-chief closed, it moved to re-open its

case for the purpose of admitting the clips. The following reflects that exchange:

[The State]: Good morning, Your Honor. Before we bring the jury in, Your
Honor, before we begin, the State indicated to [defense counsel], and we
briefly addressed this yesterday, the State would make a motion to reopen the
State’s case for the purposes of putting into evidence the two clips presented
to Mr. Gustave. At the time we did not have copies of them, they were played
through the State’s laptop. The State would ask that we be able to mark these
as State’s exhibits. [Defense counsel] and I discussed yesterday how they
should be put into evidence, whether a State’s exhibit or a court exhibit. The
State would submit they should be a State’s exhibit, they were not introduced
under 3507 and should be properly admitted as State’s exhibits, and so that
was the State’s motion, Your Honor, to have them marked and moved into
evidence and to move the entirety of the State’s exhibits into evidence at this
time, Your Honor.

THE COURT: [Defense counsel].

[Defense Counsel]: Yes, Your Honor, the defense opposes. Evidence is
closed at this point and to reopen the case to allow the State to have a do-
over and move in evidence they should have moved in yesterday would be
prejudicial to my client.

Additionally, although [the State] did not use those clips to impeach Mr.
Gustave on the stand, the purpose of introducing them through Detective
Phillips was to impeach him and impeachment evidence does not go back to
the jury, it is not admitted substantively, and so it was the defense’s position
yesterday and remains defense’s position that these are more appropriate as
a court exhibit, rather than substance evidence, and allowing the State to have
a do-over for something they should have done yesterday would be
prejudicial to my client.60

60
Id. at A218.

15
The court then asked defense counsel to explain how the defense was prejudiced,

prompting this next exchange:

[Defense Counsel]: Your Honor, I would not have the ability to offer
evidence to potentially contradict those videos and I couldn’t oppose their
admission into evidence at that time. Obviously had I had the opportunity to
oppose their admission yesterday when the State introduced that evidence, I
would have done so, for the same reasons I’m advising today, is that it was
offered for impeachment. Impeachment evidence does not go back to the
jury.

[The State]: Your Honor, I did advise [defense counsel] yesterday before I
played those clips, she did not indicate any objection at that time, and so the
State would argue there is no prejudice, it’s been presented to the jury, she
had the opportunity to cross-examine on that evidence. The State is not
admitting any evidence that hasn’t already been presented that she had an
opportunity to cross-examine on, it’s simply what was put before the jury
yesterday, that she was aware it was going to be put before the jury and she
did not object yesterday and had the opportunity to cross-examine on
yesterday or present anything that she wished to contradict the evidence the
State presented.61

The court then asked the State for its response to the defense’s position that the clips

were merely impeachment evidence which should not go back with the jury. The State

responded:

[The State]: Your Honor, I agree with regards to the clips that were used
during Mr. Gustave’s testimony, but it was the State’s evidence that was
presented through a State’s witness. If the Court prefers it be marked as a
court exhibit, that’s fine, but for the accuracy of the record I do believe it
needs to be marked as an exhibit, Your Honor.62

The court then asked defense counsel to respond and then ruled as follows:

[Defense Counsel]: Your Honor, I maintain the position that the State did not
introduce it. If the purpose of offering that evidence was to impeach Mr.

61
Id.
62
Id.

16
Gustave through another witness, impeachment evidence does not go back
to the jury. The State could have played it before Mr. Gustave’s testimony
and offered it substantively but they did not choose to do so. The State did
not choose to admit this evidence yesterday substantively and has decided
today that they wish to do so, and we would maintain that it’s impeachment
evidence and should not go back to the jury, it’s more appropriate as a court
exhibit.

THE COURT: I agree, it’s a court exhibit.63

Gustave argues in his reply brief on appeal that the “video clips were marked as

court exhibits because they were not admitted as substantive evidence.”64 But there is merit

in the State’s view that it used the video clips as substantive evidence as well. Although

the State first offered one of the video clips during cross-examination of Gustave to

impeach the truthfulness of his testimony, the State later offered both video clips in its

rebuttal case during direct examination of a State’s witness, Detective Phillips, to support

his testimony about his interview with Gustave.65 In the seventeen-second videoclip,

Gustave stated that he was afraid because I.G. had been taken to the hospital after she

accused him of rape. In the second forty-second video clip, Gustave stated that he slept

with I.G. on five occasions and could not provide a reason for sleeping with her.

The brief re-direct examination of Detective Phillips by the State lends support to

the State’s view that the clips were used substantively as well as to impeach Gustave. First,

the State asked questions to lay a foundation for playing the two video clips:

Q. Good morning, Detective Phillips.

63
Id. at A218–19.
64
Reply Br. at 2.
65
Id. at A209, A213.

17
A. Good morning.

Q. We’ve heard some testimony from Mr. Gustave about him coming
to New Castle County Police Department on January 14th?

A. Correct.

Q. And did you have an opportunity to speak with him on that date?

A. I did.

Q. And was that interview recorded?

A. It was.

Q. Have you had an opportunity to review the recording of that video?

A. Yes.

Q. Does it accurately depict the conversation that took place between
the two of you?

A. Yes.

Q. And during that interview did Mr. Gustave make mention of the
fact that he knew that [I.G.]’s family had taken her to the hospital to get some
tests and to get checked out with regards to these allegations?

A. He did.66

The State then played the video clips and questioned Detective Phillips further:

Q. I’m going to play for you a short clip. [Video played.] Was that
the question you were referring to?

A. Yes.

Q. And during that interview did you also ask Mr. Gustave about the
sleeping arrangements that he had when he was living with [I.G.] and
Regina?

66
Id. at A213 (Phillips Test.).

18
A. I did.

Q. Did he mention make mention [sic] of the fact that he slept in the
same bed with [I.G.] approximately five times?

A. He did.

Q. Did you inquire as to why it was that he slept in bed with her?

A. Yes.

Q. And we watched the prior clip before. At any point during the
interview does he offer you an explanation or reason why he had been
sleeping in bed with her?

A. No.

Q. Does he mention what he heard today with regards to [fall]ing
asleep playing video games?

A. No.

Q. I’m going to play for you another clip. [Video played.] At no other
point during the interview did he explain to you that he was playing video
games and they fell asleep while doing so?

A. No.67

Although the trial court initially agreed to mark the video clips as court exhibits,

after the State said that would be “fine,” it later explained that the clips could have been

admissible as substantive evidence. The trial court observed in its later bench ruling that a

properly admitted recording of a defendant’s incriminating statement “should generally go

to the jury room during deliberations,” and “[a]lthough the Court ruled the recordings to

67
Id. (Phillips Test.).

19
be marked as court exhibits, the Court still held the discretion on how to label the

recording.”68

This clerical mistake in sending into the jury room the clips which had been marked

as court exhibits did not prejudice Gustave. Gustave argues that this mistake not only

prejudiced him but was so prejudicial that it deprived him of his constitutional right to a

fair trial.69 We disagree. The jury properly viewed the clips during trial. The error was in

the court’s sending them back to the deliberation room with the jury. However, this was

not evidence that the jury should never have seen or heard. This was unobjected-to

evidence that the jury had already seen twice, shortly before deliberations began. The video

clips were the last piece of evidence the jury saw before deliberations began. We reject

Gustave’s claim that he was prejudiced in any significant way by the jury rewatching the

same short video clips it had already seen a short time earlier.

To the extent there was any prejudice, the curative instruction that the trial court

gave to the jury immediately after discovering the error and removing the video clips was

sufficient to remedy it. We presume that the jury followed the trial court’s instruction to

rely only on their recollection from trial of the video clips they had already seen.

68
Opening Br. Ex. A at 9–10; see also Flonnory v. State, 893 A.2d 507, 528–29 (Del. 2006) (“[W]e
think that written or recorded confessions or incriminating statements of a defendant properly
admitted (whether through § 3507 or otherwise) should generally go into the jury room during
deliberations because of the centrality of the confessions or incriminating admissions to the State’s
case.”).
69
Opening Br. at 10; see also U.S. Const. Amend. VI and XIV; Flonnory v. State, 778 A.2d 1044,
1051 (Del. 2001) (“The right to a fair trial before an impartial jury of one’s peers is fundamental
to the American criminal justice system.”).

20
These circumstances do not rise to the level of “egregious prejudice” that is required

to overcome the presumption that a curative instruction precludes a finding of prejudice.

The cases that Gustave cites to illustrate such egregious prejudice are easily distinguished.

For example, in Ashley, this Court held that a curative jury instruction could not cure

prejudice that arose from a spectator’s outburst during trial about the defendant stabbing

him fourteen times.70 That was extraneous information outside of the trial record that

should never have been before the jury. By contrast, in this case, the jury rewatched short

video clips of the defendant’s own statements that it had already properly viewed.

Although Gustave attempts to characterize this as a close case with “no physical

evidence to definitively link Gustave to the crimes charged, therefore boiling the case down

to I.G.’s word against Gustave’s,” this characterization ignores the substantial evidence that

was presented against Gustave.71 This evidence included I.G.’s testimony about Gustave’s

sexual assaults, the particular words he used with her as codes for sexual activity, the gum

that was used during the sexual assaults, and text messages that included those code words

and discussion of the gum; the text message exchange between Gustave and I.G. that

corroborated her account of events; medical test results that showed Gustave and I.G. both

tested positive for chlamydia on the same day; and evidence that he had absconded from

the police.

70
Ashley, 798 A.2d at 1021–23.
71
Opening Br. at 10.

21
Considering this evidence, the unlikelihood of the video clips causing significant

prejudice, and the fact that a curative instruction was given immediately after removing the

video clips from the room, the trial court did not abuse its discretion by denying Gustave’s

motion for a mistrial.

B. The Trial Court Did Not Abuse Its Discretion by Denying Gustave’s Motion for a
New Trial

As the Superior Court recognized, the standard for granting a motion for a new trial

is different than the standard for granting a motion for a mistrial. Delaware Superior Court

Criminal Procedure Rule 33 states that, “The court on motion of a defendant may grant a

new trial to that defendant if required in the interest of justice.”72 “[A] defendant is entitled

to a new trial only if the error complained of resulted in actual prejudice or so infringed

upon [a] defendant’s fundamental right to a fair trial as to raise a presumption of

prejudice.”73 “It is very difficult for any defendant to prove actual prejudice within a jury

panel.”74 However, “[i]f a defendant can prove a reasonable probability of juror taint, due

to egregious circumstances, that are inherently prejudicial, it will give rise to a presumption

of prejudice and the defendant will not have to prove actual prejudice.”75 Thus, a defendant

must demonstrate either actual prejudice or egregious circumstances that are inherently

prejudicial in order to succeed on a motion for a new trial.

72
Del. Super. Ct. Crim. R. 33.
73
Hughes v. State, 490 A.2d 1034, 1043 (Del. 1985) (emphasis added).
74
Flonnory, 778 A.2d at 1053 (citing Massey v. State, 541 A.2d 1254, 1257–58. (Del. 1988))
(emphasis in original).
75
Id. at 1054.

22
Gustave argues, in the alternative, that the trial court abused its discretion by

denying his motion for a new trial because the trial court reasoned in its bench ruling that

“Gustave failed to establish actual prejudice.”76 Gustave’s argument fails for two reasons.

First, Gustave mischaracterizes the trial court’s ruling. The trial court clearly ruled on both

forms of prejudice, holding that “[b]ecause the presence of the recordings during

deliberations was not inherently prejudicial and because Mr. Gustave made no showing of

actual prejudice, Mr. Gustave’s motion is denied.”77 Second, the trial court was correct in

its holding that Gustave failed to establish actual prejudice.

Gustave attempts to ground his inherent prejudice argument in this Court’s holding

in Flonnory and its progeny, especially Lewis.78 His reliance on these cases is misplaced.

In Flonnory, this Court held that:

As a general matter, recorded or written out-of-court § 3507 statements that
are played or read during trial should not be admitted as separate trial exhibits
that the jury can take into the jury room during deliberations when all other
testimony—including direct and cross-examination testimony of a § 3507
witness, out-of-court § 3507 statements presented by a witness other than the
§ 3507 declarant, and testimony presented by non- § 3507 witnesses—are
generally not admitted as separate trial exhibits in transcript form after the
witness testifies in court. The reason derives from the concern we discussed
in Taylor, that allowing the jury to have transcripts of trial testimony during
their deliberations might result in the jury giving undue emphasis and
credence to that portion of the testimony. That concern is equally applicable
to written or recorded § 3507 statements that are admitted into evidence as
separate exhibits after they have been heard in open court. Thus, we hold that
the “default” rule is that written or tape or video-recorded § 3507 statements
should not be admitted into evidence as separate trial exhibits that go with

76
Opening Br. at 11.
77
Opening Br. Ex. A at 8.
78
Opening Br. at 11–13 (citing Flonnory, 893 A.2d at 526; Lewis v. State, 21 A.3d 8, 13 (Del.
2011)).

23
the jury into the jury room during deliberations although the statements may
be played or read to the jury in the first instance during the course of trial[.]79

However, this Court was careful to distinguish between incriminating statements of

criminal defendants versus § 3507 statements of other witnesses:

We note that the § 3507 “default” rule applies narrowly only to written or
recorded § 3507 statements of witnesses other than the criminal defendant.
The default rule does not apply to written or recorded confessions or
incriminating statements a defendant makes directly (by his own hand or
mouth) when those statements are admissible as trial exhibits without the use
of § 3507 or even when the State uses § 3507 to admit a defendant’s
statement.80

This Court further noted that “it will almost always be within a trial judge’s discretion to

allow the defendant’s written or recorded confession or incriminating statement to be

admitted as a trial exhibit that goes into the jury room during deliberations.”81

In Lewis, four § 3507 witness statements were played for the jury during trial, and

the State and defense counsel agreed they should be entered into evidence as court exhibits

only and not given to the jury. 82 The trial court declined to accept that agreement and, after

reviewing this Court’s decision in Flonnory, the trial court decided sua sponte to permit all

four videotaped §3507 witness statements to be sent to the jury room for them to “work

through” the tapes during deliberations.83 This Court held that the trial court’s decision to

allow the jury to rewatch and “work through” the witness statements during deliberations

79
Flonnory, 893 A.2d at 526.
80
Id. at 527–28 (emphasis in original).
81
Id. at 529.
82
Lewis, 21 A.3d at 11–12.
83
Id. at 12.

24
allowed “exactly the type of over emphasizing this Court was concerned about in

Flonnory.”84

Gustave’s reliance on Flonnory and Lewis is misplaced because the holdings of

these cases address § 3507 statements of other witnesses, not the criminal defendant. As

to criminal defendants, Flonnory explicitly states that its rule does not apply to recordings

of incriminating statements made by the criminal defendant. There is a distinction between

impeachment of a nonparty witness and impeachment of an accused with an incriminating

admission. When a defendant is impeached with a prior inconsistent statement amounting

to an admission, that statement is admissible against him as proof of the truth of what he

said.85 Gustave chose to testify and was cross-examined as to the matters discussed on the

videos. Detective Phillips was properly permitted to testify as to Gustave’s prior statement

on those subjects.86 We agree with the Superior Court’s conclusion that it retained the

discretion on how to label the video clips.

Gustave offers no other argument for how the trial court’s clerical mistake created

egregious circumstances leading to inherent prejudice. The trial court in this case applied

the correct standards to evaluate Gustave’s motions for a mistrial and for a new trial and

84
Id. at 14.
85
See Flonnory, 893 A.2d at 516 (observing that under D.R.E. 801(2)(A), an admission by a party
opponent is not hearsay); U.S. v. Porter, 544 F.2d 936, 938 (8th Cir. 1976) (holding that the
defendant’s extrajudicial prior inconsistent statements were properly admitted as rebuttal evidence
and were “admissible as admissions of a party-opponent for any inference the jury could draw”).
86
See, e.g., Gallaway v. State, 65 A.3d 564, 570–71 (Del. 2013) (holding that a YouTube video
was properly admitted to rebut defendant’s testimony about his state of mind even though the video
would not have been admissible in the State’s case-in-chief).

25
found that Gustave failed to demonstrate actual or inherent prejudice resulting from the

clerical mistake. Accordingly, the trial court did not abuse its discretion in denying

Gustave’s motion for a mistrial and motion for a new trial.

V. CONCLUSION

For the reasons discussed above, the Superior Court’s judgment is AFFIRMED.

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