Jewell v. State: Rule 403 gatekeeping for racially charged evidence, Chapman harmless-error review, and Counterman-aligned mens rea for speech-based stalking

Introduction

In Jewell v. State (Del. Mar. 31, 2025), the Delaware Supreme Court, sitting en banc, affirmed a suite of convictions arising from a months-long campaign of threats made by David Jewell against his former partner, Andrea Jordan, while he was incarcerated. The State proved the crimes largely through recordings of prison phone calls and a voluminous log of text messages. Those communications also contained more than 140 uses of a highly offensive racial epithet, which the trial court permitted the jury to hear without redaction after ruling that “if he said it,” the defendant had no basis to object.

On appeal, the Court held that the trial court erred by failing to perform the required Delaware Rule of Evidence 403 balancing before admitting racially charged language and by allowing the jury to hear epithets that were extraneous to the threats. Nevertheless, the Court concluded that the error was subject to harmless-error analysis and was harmless beyond a reasonable doubt in light of overwhelming, untainted proof of the charged offenses. The Court also adopted an important First Amendment–driven construction of Delaware’s stalking statute: when stalking liability is predicated on speech, the State must prove the defendant’s subjective mental state (intent or knowledge) as to the resulting fear or distress, aligning Delaware law with the U.S. Supreme Court’s decision in Counterman v. Colorado.

The Court rejected additional challenges—unpreserved claims regarding jury instructions (element omission for stalking; lack of a specific unanimity instruction), a double-jeopardy claim targeting two pairs of terroristic-threatening counts, and an as-applied sufficiency argument. Justice LeGrow, joined by Justice Griffiths, dissented on the evidentiary issue, arguing that the scale and character of the racialized content made the error not amenable to harmless-error review and, alternatively, not harmless.

Summary of the Opinion

• Evidence: The Superior Court abused its discretion by admitting recordings and messages containing racial epithets without conducting the D.R.E. 403 probative-value versus unfair-prejudice balancing. The epithets were not part of the threats the State identified as the basis for the charges; their probative value was “marginal, if any.”
• Harmless error: Despite the error, the convictions were affirmed under Chapman’s constitutional harmless-error standard. Given the “crushingly incriminating” recordings and texts that constituted the threats themselves, the Court was convinced beyond a reasonable doubt that the error did not contribute to the verdict.
• Stalking mens rea: When a stalking charge relies on speech, 11 Del. C. § 1312 requires proof that the defendant subjectively intended, or knew, that his conduct would cause the fear or mental anguish specified in the statute. The trial court did not give a specific mens rea instruction for stalking, but the omission was not plain error in light of the properly instructed and unanimously returned terroristic-threatening verdicts.
• Specific unanimity: Although counts framed with “and/or” for the victim identity created a risk of divergent theories, any failure to give a specific unanimity instruction did not amount to plain error because the evidence under any theory was compelling.
• Double jeopardy: Pairs of counts alleged separate threats made on the same day (and sometimes about the same person), supported by distinct communications (e.g., a text and a call). No double-jeopardy violation occurred.
• Sufficiency: A terroristic threat need not identify the intended target by name. The record supported that the threat was directed at an actual person (e.g., “your new man”).
• Dissent: Justice LeGrow would reverse, viewing the racial language as deliberately and improperly injected to inflame bias, placing the case within Weddington’s no-harmless-error rule; alternatively, the State failed to prove harmlessness beyond a reasonable doubt.

Analysis

Precedents and Authorities Cited and Clarified

• Weddington v. State (Del. 1988): Prosecutor’s baseless insinuation about “loose white women” injected race to inflame bias. The Court deemed such deliberate, unfounded racialization incompatible with due process and, in that context, not subject to harmless-error review. In Jewell, the Court situates Weddington at one end of a spectrum—covering deliberate, gratuitous injections of race—while distinguishing cases where racially charged evidence is offered for a purported proper purpose and thus assessed under Rule 403 and Chapman.
• Zebroski v. State (Del. 1998): Admission of a defendant’s racist language was allowed because it was probative of intent and state of mind; the trial court explicitly balanced under Rule 403. Jewell reiterates Zebroski’s teaching that relevance tethered to an element may justify admission after careful balancing.
• Floudiotis v. State (Del. 1999): Racist tattoos/imagery and a racist statement were admitted erroneously; the case underscores the “gatekeeping” duty and the special need for Rule 403 balancing with racially charged evidence. Jewell quotes and applies Floudiotis’s framework, again emphasizing explicit Rule 403 analysis.
• Pierce v. State (Del. 2007) (order): Two improper words—one racial, one religious—were admitted; error deemed harmless beyond a reasonable doubt given strong independent evidence. Jewell relies on Pierce to reinforce that constitutional evidentiary errors can be harmless in appropriate cases.
• Dawson v. Delaware (U.S. 1992) and Dawson v. State (Del. 1992) (on remand): First Amendment barred admission of Aryan Brotherhood affiliation at capital sentencing where irrelevant; on remand, Delaware applied Chapman’s harmless-error test and found the error not harmless. Jewell cites Dawson to confirm that wrongful admission of racially charged evidence is not per se reversible and is reviewed under Chapman unless it fits Weddington’s narrow category.
• Chapman v. California (U.S. 1967), Delaware v. Van Arsdall (U.S. 1986), and Yates v. Evatt (U.S. 1991): These decisions supply the constitutional harmless-error framework. Jewell applies Chapman’s beyond-a-reasonable-doubt standard and Yates’s inquiry into whether the error was “unimportant in relation to everything else.”
• Counterman v. Colorado (U.S. 2023) and Andrews v. State (Del. 2007): Counterman requires a subjective mens rea for criminalizing “true threats” consistent with the First Amendment; Andrews construed Delaware’s terroristic-threatening statute to require subjective intent to threaten. Jewell extends this principle to Delaware’s stalking statute when the “course of conduct” consists of speech.
• Probst v. State (Del. 1988), Dougherty v. State (Del. 2011), Hale v. State (Del. 2024): These guide when a specific unanimity instruction is required. Jewell recognizes the Probst factors but, on plain-error review, finds no reversible prejudice.
• Delaware statutes: 11 Del. C. §§ 1312 (stalking), 621 (terroristic threatening), 251(b), 252 (mens rea default rules), 4214(c) (habitual offender). Jewell uses § 252 to carry the “knowingly” mens rea to all elements of stalking, including the result element, when liability is speech-based.

Legal Reasoning

1) Racially charged evidence and Rule 403

The trial court’s rationale—if a defendant said it, the State need not “sanitize” it—was legally insufficient. Delaware law imposes a gatekeeping obligation, heightened where racial content risks inflaming prejudice. The court must explicitly weigh probative value against unfair prejudice under D.R.E. 403. Here:

• The State initially told the court it had redacted gratuitous uses of the epithet and would leave it only when “part of the threat.” At trial, however, it removed most redactions without advising the court, and later, in supplemental appellate briefing, identified no threatening statement that actually contained the unredacted epithet.
• Because the epithets were not part of the threats, their probative value to any element (threat, intent, effect) was “marginal, if any.” The court’s limiting instruction telling jurors not to be influenced by the use of the word also undermined the argument that the language had significant probative value.
• Failure to perform the Rule 403 balancing, especially in a racially sensitive context, constituted an abuse of discretion (indeed, a failure to exercise discretion).

2) Harmless-error review applies and the error was harmless beyond a reasonable doubt

The Court refused to treat all racial-evidence errors as per se reversible. Weddington’s categorical language is confined to deliberate, unfounded prosecutorial injections of race designed to inflame bias. Where the State advances a colorable, if ultimately unpersuasive, evidentiary purpose, the error is assessed under Chapman.

Applying Chapman and Yates, the Court asked whether the challenged material was “unimportant in relation to everything else” the jury considered. Here, the jury heard the threats themselves on recordings and read them in hundreds of text messages; their accuracy was unchallenged. The State’s case did not rely on inference; the crimes were essentially recorded in real time. The defense strategy—appealing for sympathy and shifting blame to the victim—did not meaningfully contest intent or the threatening nature of the communications. Against that backdrop, the Court was convinced beyond a reasonable doubt that the unredacted racial epithets did not contribute to the verdict.

The dissent viewed the State’s conduct as akin to Weddington—an improper injection of racial bias—and, in any event, not harmless, highlighting the extraordinary volume of epithets. The majority acknowledged the volume and error but emphasized the distinct posture: advance notice; a purported evidentiary rationale; and overwhelming independent proof, distinguishing this case from Weddington’s “came out of nowhere” cross-examination gambit.

3) Mens rea for speech-based stalking under 11 Del. C. § 1312

The stalking statute criminalizes a “course of conduct” that would cause a reasonable person to fear physical injury or suffer significant mental anguish. Where that course of conduct comprises speech, the First Amendment requires more than an objective test to avoid chilling protected expression.

• Relying on Counterman, the Court held that when stalking liability rests on speech, the State must prove the defendant’s subjective mental state: that he intended, or knew, his speech would cause the specified fear or distress.
• Under 11 Del. C. § 252, the statute’s “knowingly” mens rea applies to all elements absent contrary legislative intent. Thus, for speech-based stalking, “knowingly” extends to the result element.
• Although the jury was not expressly instructed on this element for stalking, the omission did not constitute plain error because the jury simultaneously returned 25 terroristic-threatening convictions after being properly instructed that those offenses required a subjective mens rea. Those verdicts necessarily reflect the jury’s finding of the requisite mental state across multiple overlapping communications that formed the stalking “course of conduct.”

4) Specific unanimity instruction

Several terroristic-threatening counts used “and/or” language regarding the victim (e.g., threats to Jordan and/or another person). Under Probst, a specific unanimity instruction is warranted where the jury is offered multiple, conceptually distinct routes to conviction supported by evidence. The Court agreed those preconditions existed but applied plain-error review because no instruction was requested. Given the strength of the evidence on each alternative (the jury had the recordings and texts for each count), the omission did not jeopardize the fairness and integrity of the proceedings.

5) Double jeopardy and multiplicity

Jewell argued that two pairs of counts punished the same conduct. The Court examined the actual communications:

• Counts VII and VIII (May 27) addressed distinct threats in the same call—one to Jordan, one to her boyfriend Drew—permitting separate counts.
• Counts IX and XI (May 29) were based on separate threats hours apart, one via text and one via phone call; separate offenses may arise even on the same day when the threats are distinct utterances.

The State’s discovery gave clear notice of the separate communications; a bill of particulars was also available. No plain error was shown.

6) Sufficiency: Identification of the threatened “person”

The Court rejected the argument that a terroristic threat must name the target. The statute requires a threat to a “person,” not the target’s proper name. Context made clear that the threat was directed at a real, identifiable human being (e.g., “your new man”). No due-process problem or plain error.

Practical and Doctrinal Impact

A. Evidence of racialized language

• Trial courts must perform, and make a record of, D.R.E. 403 balancing when racially charged language is proffered. The notion that “if the defendant said it, it comes in” is inconsistent with Delaware law.
• Prosecutors should be prepared to demonstrate that any racialized language is inextricably tied to an element (e.g., intent, motive, effect on the victim) and cannot be conveyed with less prejudicial alternatives. Over-inclusion—especially where epithets are extraneous to the offense—risks reversal, or, at minimum, intense appellate scrutiny.
• Defense counsel should file targeted motions in limine and insist on line-by-line proffers and redactions, particularly where the State’s theory of relevance depends on context rather than the epithet itself. If admitted, request tailored limiting instructions that do not undermine the State’s claimed probative purpose.

B. Harmless-error boundary lines

• Jewell narrows Weddington’s per se reversal principle to cases of deliberate, baseless prosecutorial race-baiting. In less egregious settings, wrongful admission of racially charged evidence is reviewed under Chapman.
• The dissent signals that volume and context matter. Even when Chapman applies, persistent or pervasive exposure to inflammatory references can defeat a harmlessness finding, especially where the State’s need for the evidence is minimal.

C. First Amendment and stalking

• Delaware now expressly aligns § 1312 with Counterman: speech-based stalking requires proof that the defendant intended, or knew, his speech would cause the statutorily specified fear or distress.
• Pattern instructions and charging decisions should reflect that § 252’s “knowingly” extends to the statute’s result element when the “course of conduct” is speech. Prosecutors should build the record on subjective mens rea; defense counsel should request the instruction and preserve the issue.

D. Charging, unanimity, and multiplicity

• “And/or” formulations in counts can prompt Probst issues. The safer course is to charge separate counts per threatened person and per distinct communication, especially when threats are temporally separated or transmitted by different media.
• Where multiple threats occur the same day, the record should show discrete utterances and contexts. Defense counsel should consider seeking a bill of particulars and a specific unanimity instruction.

Complex Concepts Simplified

• D.R.E. 403 balancing: Even relevant evidence can be excluded if its probative value is substantially outweighed by risks such as unfair prejudice. With racially charged material, courts must be especially vigilant because the risk of bias is acute.
• Harmless error vs. structural error: Most constitutional trial errors are reviewed to see if they were harmless beyond a reasonable doubt (Chapman). Only a narrow class of “structural” errors—those that necessarily infect the trial’s framework (e.g., denial of counsel)—require automatic reversal. Weddington carves out a narrow no-harmless-error rule for deliberate, baseless injections of race.
• Plain error: When an issue is not preserved, reversal requires a clear, fundamental error that affected the outcome and undermined the trial’s fairness and integrity.
• True threats and Counterman: The First Amendment allows punishment of true threats, but to avoid chilling protected speech, the State must show the speaker had a culpable subjective mental state—at least knowledge that the words would be understood as threatening.
• Specific unanimity: Jurors must agree on the factual basis for conviction. If a count offers multiple, distinct routes to guilt (e.g., threats to different people), a specific unanimity instruction may be necessary to ensure all jurors agree on the same act.
• Double jeopardy and multiplicity: The State may not punish the “same offense” twice, but distinct communicative acts—separate threats in separate messages or calls—are separate offenses, even if close in time.

Conclusion

Jewell v. State reinforces two core commitments in Delaware criminal adjudication. First, racially charged evidence demands rigorous Rule 403 gatekeeping, with an on-the-record weighing of probative value and prejudice. Admission of such evidence is not categorically reversible; rather, absent the Weddington-type abuse, it is reviewed under Chapman’s exacting harmless-error standard. Applying that standard here, the Court concluded that the jury’s exposure to 140-plus racial epithets—wrongly admitted and extraneous to the threats—did not contribute to verdicts that were otherwise firmly grounded in the defendant’s own recorded words.

Second, the Court harmonized Delaware’s stalking statute with modern First Amendment doctrine: when stalking liability rests on speech, the State must prove subjective intent or knowledge that the speech would cause the specified fear or distress. Although the jury was not expressly instructed on that element, the omission did not rise to plain error given the overlapping, properly instructed terroristic-threatening counts.

Beyond resolving this case, the opinion charts practical pathways for trial courts and litigants. Prosecutors should tailor and justify any racially charged content and make scrupulous redaction decisions; defense counsel should press for line-by-line 403 assessments, unanimity protections where counts conflate victims, and Counterman-compliant mens rea instructions for speech-based crimes. In short, Jewell both tightens evidentiary discipline around racially sensitive material and clarifies the constitutional mens rea landscape for stalking, while preserving convictions supported by overwhelming, untainted proof.