Gustave v. State — Clarifying Jury Access to a Defendant’s Recorded Admissions and the Threshold for Mistrial/New-Trial Relief after Exhibit Errors

Introduction

Gustave v. State, No. 382, 2024 (Del. Jul. 29, 2025) is a Supreme Court of Delaware decision that affirms the conviction of Marckenley Gustave for multiple sex offenses against his eleven-year-old cousin. The ruling is significant for two interconnected reasons:

1. It draws a sharp boundary between recorded statements made by a criminal defendant and recorded statements of other witnesses under Delaware Rule of Evidence 3507, holding that—even when initially used for impeachment—such admissions may properly be treated as substantive evidence and may, in the judge’s discretion, be sent to the jury room.
2. It refines the Delaware standards for mistrial and new-trial motions arising from clerical or exhibit-handling mistakes, emphasizing that manifest necessity/inherent prejudice will rarely be found when the challenged material is merely a repeat of evidence the jury already saw, particularly where a prompt curative instruction is given.

The case therefore provides much-needed guidance to trial courts and litigants on how to deal with inadvertent exhibit transmission to the jury and on the evidentiary status of a defendant’s own recorded statements.

Summary of the Judgment

• Holding: The Superior Court did not abuse its discretion in denying (a) Gustave’s motion for mistrial and (b) his post-verdict motion for a new trial after two short video clips of his police interview (initially labeled “court exhibits”) were accidentally provided to the jury during deliberations.
• Key Findings:
  • The clips contained Gustave’s own incriminating admissions and had been played twice during trial without objection; thus they were not “extraneous” material.
  • A prompt removal of the clips and a targeted curative instruction constituted a “meaningful, practical alternative” to the extraordinary remedy of mistrial.
  • Gustave failed to prove either actual prejudice or inherent (egregious) prejudice; therefore Rule 33 did not require a new trial.

Analysis

Precedents Cited

The Court relied on a well-developed line of Delaware and federal cases:

• Flonnory v. State, 893 A.2d 507 (Del. 2006) – Established the “default rule” that written or recorded statements of non-party witnesses admitted via DRE 3507 should not accompany the jury into deliberations, to avoid undue emphasis.
• Lewis v. State, 21 A.3d 8 (Del. 2011) – Applied Flonnory, reversing where videotaped §3507 witness statements went to the jury room over the parties’ agreement.
• Smith v. State, 913 A.2d 1197 (Del. 2006); Burns, Sullivan, Pena – Stand for the presumption that juries follow curative instructions and for the high bar to mistrial.
• Flowers v. State, 858 A.2d 328 (Del. 2004); Williams, Copper – Recite the “manifest necessity / meaningful alternative” test for mistrial.
• Ashley v. State, 798 A.2d 1019 (Del. 2002) – Example of “inherently prejudicial” circumstances (spectator’s outburst) contrasted with the present case.

The Court read Flonnory and Lewis narrowly, stressing Flonnory’s express carve-out: the default rule does not apply to a defendant’s own incriminating statements, which are admissions of a party-opponent (DRE 801(d)(2)(A)). Hence the Superior Court retained discretion to send such statements to the jury, and the accidental inclusion did not transgress Flonnory.

Legal Reasoning

1. Was a mistrial required?
   • Mistrial is an “extraordinary remedy” triggered only by manifest necessity.
   • Here, the error was purely clerical — mismarking the media as State exhibits — and was immediately cured by:
     1. Removing the clips from the jury room;
     2. Instructing jurors that they must rely solely on their recollection from trial.
   • Because the clips were merely cumulative of evidence properly admitted and recently played, the risk of undue weight was minimal.
   • Therefore, there existed a “meaningful, practical alternative” to mistrial (the curative instruction), satisfying Delaware precedent.
2. Motion for new trial (Rule 33): actual vs. inherent prejudice
   • Gustave had to show actual prejudice (the verdict was probably affected) or egregious circumstances giving rise to a presumption.
   • The Court found none: the jury returned a mixed verdict (including a conviction on a lesser-included offense), suggesting reasoned deliberation rather than inflamed bias.
   • The clips contained no new information and no inflammatory material; they simply repeated defendant’s own words.
3. Evidentiary status of the clips
   • Admissions by a party-opponent are non-hearsay under DRE 801(d)(2)(A) and are admissible substantively.
   • Even if first deployed for impeachment, once offered through Detective Phillips the statements became independent substantive evidence.
   • Thus, the trial judge had discretion to label them as State exhibits, and the mis-labeling caused no substantive error.

Impact of the Judgment

Gustave establishes or reinforces several practical rules for Delaware litigation:

1. Defendant’s own statements ≠ Flonnory material. Trial judges may, in their discretion, allow recordings or writings of a defendant’s incriminating statements to accompany the jury, even if the statements entered during cross-examination or rebuttal.
2. Clerical exhibit errors rarely justify a mistrial. When the material is not extraneous and a prompt curative instruction is given, appellate courts will presume the instruction sufficed.
3. Strategic Objections must be timely. Defense counsel’s failure to object when statements are first played undermines later claims of prejudice, especially where the same evidence reaches the jury room by mistake.
4. Clarifies the “actual vs. inherent prejudice” framework for Rule 33 motions, signaling that defendants must marshal concrete evidence of effect on the verdict or show truly egregious circumstances.

Complex Concepts Simplified

• Manifest Necessity – A high bar for declaring mistrial; it exists only if no reasonable alternative (e.g., curative instruction) can protect the defendant’s right to a fair trial.
• Inherent vs. Actual Prejudice
  • Inherent (or egregious) prejudice: circumstances so extreme that prejudice is presumed (e.g., jurors learn of defendant’s prior murders). Rare.
  • Actual prejudice: concrete evidence showing the error probably affected the verdict (often via juror testimony or undisputed facts).
• DRE 3507 – Delaware evidentiary rule allowing the substantive admission of a witness’s prior recorded statement and their in-court testimony, provided certain predicates are met. It is not required for admitting a defendant’s own statements.
• Admission of a Party-Opponent – Under DRE 801(d)(2)(A), anything a defendant says can be used against him and is classified as “non-hearsay.”
• Court Exhibit v. State Exhibit – “Court exhibits” (e.g., impeachment clips, bench notes) are not typically given to the jury; “State/Defense exhibits” are. The label often turns on the purpose of admission, but the judge retains discretion.

Conclusion

Gustave v. State cements two pragmatic doctrines in Delaware criminal practice. First, a defendant’s own recorded admissions hold a privileged evidentiary status: regardless of whether they debut as impeachment, they are substantive evidence and, in the court’s discretion, may be reviewed by jurors during deliberations. Second, clerical missteps in exhibit handling—without more—will not propel a mistrial or new trial where a swift curative instruction and an absence of demonstrable prejudice exist. By synthesizing longstanding mistrial jurisprudence with the Flonnory/Lewis line, the decision gives trial judges clearer guidance and reinforces the judiciary’s confidence that juries, when properly instructed, can and do follow the law.