Lloyd v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ERIC C. LLOYD, §
§ No. 460, 2019
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1710006739 (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: January 6, 2021
Decided: March 26, 2021

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and
MONTGOMERY-REEVES, Justices, constituting this Court en Banc.

Upon appeal from the Superior Court of the State of Delaware: AFFIRMED.

Megan J. Davies, Esquire (argued), Haddonfield, New Jersey; Jan A. T. van
Amerongen, Jr., Esquire, Office of Conflicts Counsel, Wilmington, Delaware, for
Defendant Below, Appellant Eric C. Lloyd.

Sean P. Lugg, Esquire (argued), Delaware Department of Justice, Wilmington,
Delaware, for Plaintiff Below, Appellee State of Delaware.
SEITZ, Chief Justice:

A Superior Court jury convicted Eric Lloyd of six felonies stemming from his

involvement in a Wilmington drug dealing enterprise. The Superior Court sentenced

Lloyd to an aggregate of thirty years of incarceration without the possibility of early

release. On appeal, Lloyd challenges his convictions and sentence. First, Lloyd

contends that the trial court erred when it denied his motion to sever his case from

that of co-defendant Dwayne White. Second, Lloyd argues that the trial court erred

when it denied his motion for a mistrial after an eyewitness to a shooting

misidentified Lloyd as the gunman. In Lloyd’s third and fourth claims of error, he

argues that the trial court should not have admitted gun evidence seized from a co-

defendant’s apartment and rap music videos created by other enterprise members.

Fifth, Lloyd argues that the trial court erred by allowing testimony from Lloyd’s

former attorney’s secretary about a drug transaction. And finally, Lloyd contends

that the trial court violated his rights under the Eighth Amendment by imposing

consecutive sentences, resulting in thirty years of incarceration, without the option

for early release. For the reasons discussed below, we find Lloyd’s claims are

without merit and affirm the judgment of the Superior Court.

2
 I.

This Court has already affirmed the convictions of Lloyd’s co-defendant,

Dwayne White, who was tried with Lloyd.1 We incorporate the factual background

in that thorough opinion and focus on the facts pertinent to Lloyd’s conviction and

his arguments on appeal.

A.

According to the record before us, Lloyd was the leader of a sprawling drug

dealing enterprise in Wilmington. 2 Beginning in 2015, enterprise members sold

large amounts of cocaine and heroin. Lloyd enlisted members to distribute cocaine

on a consignment basis. 3 According to William Wisher, an admitted enterprise

member, Lloyd would provide him with cocaine at an agreed upon price.4 Wisher

would then “cook” the powder cocaine with baking soda to turn it into crack

cocaine.5 After selling the crack cocaine, Wisher would keep as profit the amount

above the agreed upon price. 6 Wisher and Lloyd would communicate using

Facetime to avoid law enforcement surveillance.7 Dante Sykes, another admitted

1
White v. State, 243 A.3d 381 (Del. 2020). The defendants used nicknames at times—Lloyd
(“Butter,” “Butterico,” or “Bub”), White (“BD” or “Boop”), and Anderson (“Frog”).
2
App. to Opening Br. at A1133 (Testimony of William Wisher) (describing that Lloyd ran the
show, “the whole giddup”); Id. at A1234 (Testimony of Dante Sykes) (stating that Lloyd was at
the top of the Wilmington drug trade for cocaine).
3
Id. at 1136 (Testimony of William Wisher).
4
Id.
5
Id. at A1137-38.
6
Id. at A1138-39.
7
Id. at A1145.

3
enterprise member, confirmed the same consignment arrangement. Sykes described

one transaction when Lloyd delivered a brick of cocaine by putting it in the trunk of

his car while Sykes was meeting with his lawyer in Wilmington.8 The same lawyer,

Joseph Benson, represented other members of the enterprise, including Lloyd.

Lloyd concealed illegal drug sale proceeds through the purchase of investment

properties, gambling, and sports betting. 9 Lloyd and White created LLCs to

purchase real estate, only to quickly transfer the title to a friend or family member at

no cost.10 In one transaction, a property owned by an enterprise member with an

assessed value of $52,000 was transferred to White’s wife, Nyeesha White, for free.

Nyeesha White then placed the property in a trust for fifteen months and transferred

the property, again for free, to NCTZA, LLC. The address listed for NCTZA, LLC

was the address Lloyd listed as his primary residence.11 Sykes also described how

Lloyd instructed him to use a first-time homeowner program to purchase real estate

so he could conceal drug proceeds.12

8
Id. at A1239 (Testimony of Dante Sykes).
9
Id. at A835-36 (Testimony of Tyrone Roane) (“If I got $50,000 in drug money on me, I can go
to casino [sic], and get $1,000 worth of chips and gamble that up so if I lose, I can just flop it out
. . . so basically what I’m doing is I’m turning my dirty money into clean money.”); A1240
(Testimony of Dante Sykes) (explaining how enterprise members would gamble as “an easy way
to wash the money out”).
10
Id. at A1369 (Testimony of Michelle Hoffman).
11
Id. at A1372.
12
Id. at A1241 (Testimony of Dante Sykes) (recounting how Lloyd showed Sykes how to use the
Interfaith Housing program to “get into the properties, too, . . . you know, having some homes and
stuff knowing this drug thing don’t last forever”).

4
 When Lloyd returned to federal custody in 2017 for a probation violation, he

transferred control of the enterprise to White.13 White expanded the enterprise into

heroin sales. Lloyd continued to communicate with members of the enterprise while

in prison.14 At times Lloyd would discuss enterprise business and the challenges of

running a large-scale operation.15 He also continued to manage his investments from

prison.

Some enterprise members were associated with smaller groups within the

enterprise. White and three other members—Teres Tinnin, Michael Pritchett, and

White’s brother, Rasheed White—belonged to a group called “The Four

Horsemen.”16 Tinnin and Pritchett were also members of the “Big Screen Boys,” a

group of friends who had an ongoing feud with one of their former associates,

Markevis Stanford.17 The Big Screen Boys included Ryan Bacon, Maurice Cooper,

Dion Oliver, Dante Sykes, Tinnin, and Pritchett.18

13
Id. at A1235 (Testimony of Dante Sykes) (“Bub [Lloyd] had went to jail, so, you know, basically
saying he’s leaving it with BD [White], leaving, like, the plug with BD [White], so I had to get
with BD [White] to get work.”).
14
Id. at A1354 (Testimony of Det. Barnes) (describing how Lloyd sent “close to 10,000 emails”
while he was incarcerated).
15
Id. at A1362-63 (Testimony of Det. Barnes) (reading an email where Lloyd lamented dealing
with “these young boys and these mess ups,” and why he avoids street-level dealing).
16
Id. at A175-76 (State’s Opening Statement); Id. at A464 (Testimony of Det. Barnes) (confirming
the Four Horsemen were “the most high level drug dealers in the city of Wilmington”).
17
Id. at A843 (Testimony of Tyrone Roane). Stanford is also known as “Young Money.” Id. at
A842.
18
Id. at A842-44 (listing members of the Big Screen Boys); Id. at A1256 (Testimony of Dante
Sykes).

5
 Believing Stanford was a “snitch,” the feud escalated when the Big Screen

Boys published a video of two members having sex with Stanford’s girlfriend. 19

This led to a series of retaliatory shootings, assaults, and robberies between Stanford

and members of the enterprise. The violent activity drew attention from police,

which was bad for the enterprise’s drug business.20 White determined Stanford “had

to go,” and White placed a “bounty” on Stanford’s life.21

On June 6, 2017, Oliver and Pritchett targeted Stanford in two shootings.

Stanford avoided being hit in both incidents. During the second shooting, he

shielded himself behind a vehicle stopped at a stop sign. 22 Gunfire meant for

Stanford shattered the vehicle’s windows and struck a six-year-old passenger,

Jashown Banner, causing paralysis and brain damage from his wounds.23

After police arrested Pritchett for Banner’s shooting, White offered $20,000

to members of Banner’s family in exchange for a sworn statement that Pritchett was

not involved in the shooting. 24 While investigating Banner’s shooting, police

19
Id. at A844 (Testimony of Tyrone Roane) (“Big screening means basically when you got a group
of individuals, that take a female, have sex with her and record it and spread it through social
media, basically on a big screen.”).
20
Id. at A850.
21
Id. at A847-50. Roane testified that “the remedy was basically like Young Money [Stanford]
had to go, meaning that, . . . somebody would do something to him, so Dwayne White at one
particular time, . . . [said] they are going to do something to Young Money [Stanford], a bounty.”
Id. at A848.
22
Id. at A340 (Testimony of Shaylynn Banner).
23
Id. at A342.
24
Id. at A243 (Testimony of Joshua Potts), A347-48 (Testimony of Shaylynn Banner), A355-56
(Testimony of Deborah Banner).

6
obtained a warrant for a wiretap on White’s phone. The wiretap revealed links

between White and other individuals who had previously been arrested for drug

offenses, as well as connections between these individuals and the larger drug

enterprise.

B.

In October 2017, a New Castle County grand jury returned a 36-count

indictment against Lloyd and thirty-three other defendants. A series of superseding

indictments modified the charges. Lloyd and White were charged in the

indictment’s lead count, Criminal Racketeering. Lloyd was also charged with six

other felony counts: Conspiracy to Commit Criminal Racketeering, Drug Dealing

Cocaine, Conspiracy to Deal Cocaine, Money Laundering, Conspiracy to Commit

Money Laundering, and Attempting to Evade or Defeat Tax.

Of the three defendants, White was the only defendant charged with the

attempted murder of Stanford and Banner’s shooting.25 Lloyd moved to sever his

trial from White’s trial. Lloyd argued that the Jashown Banner shooting was a

separate and distinct event that fell outside of enterprise activity. The court denied

the motion. Also, before trial, Lloyd learned that White planned to admit guilt to the

Drug Dealing, Conspiracy to Commit Drug Dealing, and Criminal Racketeering

charges against him, but that White intended to deny involvement in the charges

25
Id. at B261-62.

7
related to the shooting. Lloyd renewed his motion to sever, this time arguing that

White’s defenses and Lloyd’s defenses were mutually antagonistic. Lloyd also

asked the court to reconsider his prior claim that the shooting was beyond the scope

of enterprise activity. The court denied the motion.

In addition to witnesses who testified about Lloyd’s involvement in the

enterprise, the State called three members of Banner’s family at trial—Banner’s

father, Joshua Potts; his mother, Shaylynn Banner; and his grandmother; Deborah

Banner. Each served as a witness for the shooting and the bribery attempts. White

approached Potts in person and offered him $20,000 in exchange for an affidavit

exonerating Pritchett.26 Next, White sent text messages to Shaylynn Banner and

included photos of Pritchett and himself, so she knew who to exculpate.27 Shaylynn

turned the texts and photos over to police. Finally, White approached Deborah

Banner in person and made the same $20,000 offer, which she also rejected.28 The

members of the Banner family that White approached each testified that White

26
Id. A243-44 (Testimony of Joshua Potts) (“[Lloyd] asked me if . . . we would take a bag of
$20,000 and go and say that his man, whoever his man is, wasn’t involved in the shooting.”)
27
Id. at A345-47 (Testimony of Shaylynn Banner) (describing how she received a text message
with a photo of Lloyd and a photo of Pritchett, and that Lloyd asked her to say Pritchett was not
involved in the shooting).
28
Id. at A355 (Testimony of Deborah Banner) (“I was offered bribe money to testify that the boy
that was driving the truck wasn’t him . . . it was a $20,000 offer. $10,000 for me and $10,000 for
my daughter Shaylynn.”).

8
identified himself only as “Boop” and they did not know who White was prior to the

bribe and never saw him again after.29

White admitted that he attempted to bribe the Banner family. During Potts’

testimony, the State asked him to identify the person who attempted to bribe him.

Pointing to Lloyd, Potts identified the person in “[b]lue jeans over there” as Boop.30

When the State asked Potts to clarify, Potts again identified Lloyd as Boop.31 After

the misidentification, Lloyd moved for a mistrial. The court denied the request. The

State called witnesses to make clear that White solicited the bribe.32 Counsel also

agreed to a stipulation read to the jury correcting the misidentification.33

On June 14, 2019, a jury convicted Lloyd of Criminal Racketeering,

Conspiracy to Commit Criminal Racketeering, Conspiracy to Deal Cocaine, Money

Laundering, Conspiracy to Commit Money Laundering, and Attempting to Evade or

Defeat Tax.34 Lloyd was found not guilty of Drug Dealing Cocaine. On October

17, 2019, the Superior Court sentenced Lloyd to an aggregate thirty years of

incarceration, followed by a term of probation.35 This is Lloyd’s direct appeal.

29
Id. at A245 (Testimony of Joshua Potts) (“I never met [Boop] – I didn’t know him at all.”);
A345 (Testimony of Shaylynn Banner) (explaining that she did not know who Boop was until he
contacted her with the bribe); A356 (Testimony of Deborah Banner) (same).
30
Id. at A243.
31
Id. Shaylynn Banner and Deborah Banner were not asked to make an identification in court.
32
Id. A281-82 (Testimony of Det. Devon Jones).
33
Id. at A1276.
34
Id. at A15.
35
Id. at A1506-07, A1523-28 (Sentence Order).

9
 II.

A.

First, Lloyd challenges the Superior Court’s denial of two motions to sever

his trial from that of co-defendant Dwayne White. Under Superior Court Criminal

Rule 8(a), a defendant may be indicted for two or more offenses if the offenses are

“of the same or similar character or are based on the same act or transaction or on

two or more acts or transactions connected together or constituting parts of a

common scheme or plan.”36 Superior Court Criminal Rule 8(b) permits joinder of

defendants in the same indictment “if they are alleged to have participated in the

same act or transaction or in the same series of acts or transaction constituting an

offense or offenses.”37 Rule 14 allows the Superior Court to grant separate trials

“[i]f it appears that a defendant or the state is prejudiced by a joinder of offenses or

of defendants in an indictment or information or by such joinder for trial.” 38

“Ordinarily, defendants indicted jointly should be tried together; but, if justice

requires it, the trial court should grant separate trials.”39 The defendant bears the

burden of establishing more than “mere hypothetical prejudice.”40

36
Super. Ct. Crim. R. 8(a).
37
Super. Ct. Crim. R. 8(b).
38
Super. Ct. Crim. R. 14.
39
Skinner v. State, 575 A.2d 1108, 1119 (Del. 1990) (citing Jenkins v. State, 230 A.2d 262, 272
(Del. 1967)).
40
Bates v. State, 386 A.2d 1139, 1142 (Del. 1978).

10
 This Court has held that, when reviewing a motion to sever, the trial court

should consider when appropriate “(1) problems involving a co-defendant’s extra-

judicial statements; (2) an absence of substantial independent competent evidence

of the movant’s guilt; (3) antagonistic defenses as between the co-defendant and the

movant; and (4) difficulty in segregating the State’s evidence as between the co-

defendant and the movant.”41 On appeal, we review a trial court’s decision on a

motion to sever for abuse of discretion.42 The denial of a motion to sever will not

be set aside “unless [the] defendant demonstrates a ‘reasonable probability’ that the

joint trial caused ‘substantial injustice.’”43

i.

The Superior Court denied Lloyd’s first motion to sever and reasoned that a

charge for “criminal racketeering requires proof of a defendant’s agreement with at

least one other person to commit two or more felonies to further an enterprise.”44

The court also found that “[e]vidence of a defendant’s agreements with others to

further an enterprise by illegal means, of a defendant’s role in coordinating the

felonious conduct, and of co-defendants’ alleged felonious conduct in furtherance of

41
Floudiotis v. State, 726 A.2d 1196, 1210 (Del. 1999) (citing Manley v. State, 709 A.2d 643, 652
(Del. 1998)). See Jenkins, 230 A.2d at 273.
42
Phillips v. State, 154 A.3d 1146, 1156 (Del. 2017) (citing Winer v. State, 950 A.2d 642, 648
(Del. 2008)).
43
Id. (alteration in original) (internal quotation marks omitted) (quoting Walker v. State, 790 A.2d
477, 2002 WL 122643, at *1 (Del. Jan. 24, 2002) (TABLE)); Super. Ct. Crim. R. 8(a); Super. Ct.
Crim. R. 14.
44
App. to Opening Br. at A60 (Order Denying Mot. to Sever).

11
that enterprise would all be inextricably intertwined.” 45 According to the court,

Lloyd was alleged to be at the center of the enterprise and conspired with White and

many other individuals in furtherance of the enterprise by committing numerous

felony acts.46 The court concluded that all of Lloyd’s and White’s actions were

alleged “predicate offenses” of criminal racketeering committed in furtherance of

the enterprise and were thus inextricably intertwined.47

Lloyd agrees that Rule 8(b) provides substantial leeway for the State to join

racketeering defendants in a single trial.48 Lloyd also agrees that defendants charged

with participating in the same racketeering enterprise or conspiracy can be tried

together, even when different defendants are charged with different acts in the

indictment, if the acts charged against each defendant are charged as racketeering

predicates or as acts undertaken in furtherance of, or in association with a commonly

charged enterprise or conspiracy.49 Lloyd argues, however, that Banner’s shooting

and the predicate acts of attempted murder, conspiracy to commit murder, criminal

solicitation of murder, and aggravated intimidation “were not acts which had the

same or similar purposes, results, participants, victims, or methods of commission,

45
Id.
46
Id.
47
Id.
48
Opening Br. at 15-16.
49
Id. (citing United States v. Dickens, 695 F.2d 765, 779 (3d Cir. 1982) (“However peripheral
defendants perceive their participation, Congress intended RICO prosecutions to entrammel ‘even
the smallest fish.’”), cert. denied, 460 U.S. 1092 (1983)).

12
or otherwise were interrelated by distinguishing characteristics.” 50 In other words,

these predicates “were not related to the drug dealing activities of the enterprise and

Defendant White was not able to commit these offenses solely because of his

relationship to the enterprise.”51 According to Lloyd, the individuals indicted for

charges related to the shooting “were all members of a separate and distinct group

from the larger enterprise; ‘The Big Screen Boys’ and/or ‘The Four Horsemen.’”52

We disagree. In H. J. Inc. v. Northwestern Bell Tel. Co.,53 the United States

Supreme Court held that, when addressing the federal RICO statute that, to prove a

pattern of racketeering activity, the government must show that the predicate acts

are related to the enterprise and they amount to or pose a threat of continued criminal

activity.54 We have followed this precedent when interpreting our state racketeering

statute.55 The first prong – relatedness – exists if the racketeering acts “have the

same or similar purposes, results, participants, victims, or other methods of

commission, or otherwise are interrelated by distinguishing characteristics and are

not isolated events.”56 “[D]ifferent members may perform different roles at different

50
Opening Br. at 17.
51
Id.
52
Id.
53
492 U.S. 229 (1989).
54
H.J. Inc., 492 U.S. at 239.
55
See Kendall v. State, 726 A.2d 1191, 1194 (Del. 1999) (quoting Stroik v. State, 671 A.2d 1335,
1342 (Del. 1996) (citing H.J. Inc., 492 U.S. at 239)).
56
H.J. Inc., 492 U.S. at 240 (quoting 18 U.S.C. § 3575(e))).

13
times.” 57 The second prong – continuity – is present when “the predicate acts

themselves involve threats of long-term racketeering activity, or . . . [that] the

predicate acts are part of an entity’s regular way of doing business.”58

The attempted murder of Stanford and the shooting of Jashown Banner are

predicate acts that meet the relatedness standard. The State presented evidence that

the drug dealing enterprise and the shooting involved similar purposes, participants,

and were otherwise interrelated to the activities of the drug dealing enterprise.

Specifically, testimony from enterprise members showed that Stanford’s retaliatory

attacks were a threat to enterprise business by bringing unwanted attention of police

investigators to the enterprise.59 By removing Stanford, the enterprise sought to stop

the feud and the unwanted attention it brought to the enterprise. The Superior Court

did not abuse its discretion in denying Lloyd’s first motion to sever.

ii.

Lloyd renewed his motion to sever after White decided he would admit to

participating in a drug dealing enterprise. The Superior Court denied the motion. It

found that White’s admission to drug dealing would not “create such a serious risk”

57
Boyle v. United States, 556 U.S. 938, 948 (2009).
58
Kendall, 726 A.2d at 1194 (quoting United States v. Pelullo, 964 F.2d 193, 208 (3d Cir. 1992)
(citing H.J. Inc., 492 U.S. at 242)).
59
App. to Opening Br. at A850 (Testimony of Tyrone Roane) (explaining that the shootings were
bad for enterprise business “[b]ecause the more shooting the more the police were going to be
around”); Id. at A1245 (Testimony of Dante Sykes) (describing how shootings are “bad for
business” because they draw unnecessary attention and “bring the[] police around”).

14
that the jury would confuse White’s participation in the enterprise with that of

Lloyd.60 The court also instructed the jury that each defendant is charged with a

separate offense and should be evaluated independently.61

Lloyd argues on appeal that the court erred because his defense was mutually

exclusive and irreconcilable with White’s concession that the drug dealing enterprise

existed. He asserts that White’s concession conflicted with Lloyd’s defense, which

was to deny the existence of any enterprise. As such, according to Lloyd, “the jury

could not believe both” and his case should have been severed for antagonistic

defenses.62

“[T]he presence of hostility between a defendant and his codefendant or ‘mere

inconsistencies in defenses or trial strategies’ do not require a severance.”63 Rather,

severance is necessary “when ‘the jury can reasonably accept the core of the defense

offered by either defendant only if it rejects the core of the defense offered by his

codefendant[.]’” 64 Mutually exclusive defenses were not present here. As the

Superior Court found, “the fact that the defendants [had] conflicting versions of what

60
Id. at A93-94 (citing Zafiro v. United States, 506 U.S. 534, 539 (1993) (“[W]hen defendants
properly have been joined under Rule 8(b), a district court should grant severance . . . only if there
is a serious risk that a joint trial would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt or innocence.”)).
61
Id. at A94.
62
Opening Br. at 20.
63
Phillips, 154 A.3d at 1157 (alteration in original) (internal quotation marks omitted) (quoting
Outten v. State, 650 A.2d 1291, 1298 (Del. 1994)).
64
Manley, 709 A.2d at 652 (internal quotation marks omitted) (quoting Bradley v. State, 559 A.2d
1234, 1241 (Del. 1989)).

15
took place or[,] . . . the extent to which they participated in [the enterprise], is a

reason for rather than against a joint trial” because it is easier to uncover the truth in

these situations if the defendants are tried together.65 The court pointed out that

“defendants are not entitled to severance merely because they may have a better

chance of acquittal in separate trials or whenever co-defendants have conflicting

defenses.”66 Rather, a court should grant severance only when there is a “serious

risk” that the “joint trial would compromise a specific trial right of one of the

defendants or prevent the jury from making a reliable judgment about guilt or

innocence.”67 But, as the court explained, even in the presence of a serious risk of

prejudice, severance is unnecessary if the prejudice can be cured with a proper jury

instruction.68

Although White and Lloyd took differing positions with respect to the

existence of the enterprise and their participation in the enterprise, we agree with the

Superior Court’s reasoning that White’s trial strategy to admit guilt to the drug

dealing and racketeering charges did not “create such a serious risk” and was not “so

antagonistic” that the jury could not be properly instructed as to avoid substantial

65
App. to Opening Br. at A93.
66
Id. (citing Zafiro, 506 U.S. at 540); see also Taylor v. State, 76 A.3d 791, 801 (Del. 2013) (“[A]
defendant is not entitled to a separate trial simply because he might then stand a better chance of
being acquitted.”).
67
App. to Opening Br. at A93.
68
Id. at A93-94.

16
prejudice to Lloyd. The jury could have concluded that White was part of an

enterprise that did not include Lloyd.

Lloyd also argues that he was prejudiced by the State’s references to the

shooting of Jashown Banner. But the court also gave the following instruction to

the jury with respect to assessing evidence against each defendant:

The defendants are each charged with separate offenses that are set
forth in the indictment. These are each separate and distinct offenses,
and you must independently evaluate each offense. The fact that you
reach a conclusion with respect to one offense, or with regard to one
defendant, does not mean that the same conclusion will apply to any
other charged offense or to any other charged defendant. Each charge
before you is separate and distinct, and you must evaluate evidence as
to one offense independently from evidence of each other offense and
render a verdict as to each individually.69

“Juries are presumed to follow the court’s instructions.”70 Indeed, the jury found

Lloyd guilty of all charges, except the drug dealing charge. This suggests that the

jury understood the above instruction and assessed each defendant’s charges with

due care. And, as we discuss next, we reject Lloyd’s argument that he suffered

prejudice from the misidentification at trial of Lloyd as White and his participation

in the bribery scheme.

69
Id. at A1457.
70
Phillips, 154 A.3d at 1157.

17
 B.

During Potts’ trial testimony, he twice misidentified Lloyd as “Boop.” 71

Shaylynn Banner and Deborah Banner were not asked to make an eye-witness

identification of the man who attempted to bribe them, although they both testified

that the man who contacted them identified himself as “Boop.” After Potts’

testimony, the State called Detective Devon Jones who clarified that “Dwayne White

also goes by the nickname Boop.”72 Detective Jones offered further clarification and

stated, about a photograph of White, that White was the person who the Banner

family told police had contacted them with a bribe.73

Lloyd moved for a mistrial the following day, arguing that the

misidentification was prejudicial because it created an inaccurate association

between Lloyd and Banner’s shooting and the subsequent bribe. The Superior Court

denied the motion and concluded that granting a mistrial would be “too draconian a

remedy for the problem that occurred[,]”—that being “the misidentification of

[Lloyd] by an, obviously, distraught witness who is the father of the child who was

shot.”74 The court reasoned that later testimony from Detective Jones “sufficiently

71
App. to Opening Br. at A243 (Testimony of Joshua Potts).
72
Id. at A282 (Testimony of Det. Devon Jones).
73
Id. at A281.
74
Id. at A403.

18
cured the problem.”75 The court added that a stipulation by the State and White as

to White’s involvement in the bribe, while not necessary, would further mitigate any

remaining issues.76 The State and White stipulated to the jury that:

The State of Delaware and defendant Dwayne White hereby stipulate
to the following: One, one of Dwayne White’s nicknames is Boop.
Two, that Dwayne White approached Joshua Potts, Shaylynn Banner,
and Deborah Banner with an offer of money in exchange for their
exoneration of Michael Pritchett in the shooting of Jashown Banner.77

The court instructed the jury that, “[w]hen the attorneys on both sides stipulate or

agree as to the existence of a fact . . . you must, unless otherwise instructed, accept

the stipulation as evidence and regard that fact as proved.”78

On appeal, Lloyd asks the Court to review the trial judge’s denial of his

motion for mistrial under the factors set forth in Pena v. State79 for an unsolicited

prejudicial response by a witness. According to Lloyd, Pena applies because Potts’

“answer was not the answer the [State] was expecting or attempting to solicit . . . .” 80

We review the denial of a motion for a mistrial for abuse of discretion.81

While we have not held that the Pena factors apply to mistaken identity

testimony, the parties have used the framework here. In Pena, this Court set forth a

75
Id.
76
Id. at A403-04.
77
Id. at A1276.
78
Id. at A1458 (Jury Instructions).
79
856 A.2d 548, 550-51 (Del. 2004) (citing Griffith v. State, 2003 WL 1987915, at *4 (Del. 2003)).
80
Opening Br. at 25 n.10.
81
Chambers v. State, 930 A.2d 904, 909 (Del. 2007).

19
four-factor test for appellate review of an alleged prejudicial remark by a witness:

(1) the nature and frequency of the offending comment; (2) the likelihood of

resulting prejudice; (3) the closeness of the case; and (4) the adequacy of the judge’s

actions to mitigate any potential prejudice.82 Here, if the Pena factors are applied,

they do not weigh in favor of a mistrial.

First, the misidentification was not so prejudicial to warrant a mistrial. While

Potts did make two misidentifications, he named Boop as the person who

approached him. The next person to testify was Detective Jones. During Detective

Jones’ testimony, the jury was shown a photo of White, and Detective Jones clarified

that Boop is Dwayne White. Second, the record contains dozens of references to

Boop as the individual who bribed the Banner family, including testimony from

Shaylynn Banner and Deborah Banner. Thus, Potts’ misidentifications were

unlikely to have misled the jury. Third, the record reflects that this was not a close

case. The State had a strong case against Lloyd. The State’s witnesses testified

about Lloyd’s central role in the enterprise, the State’s experts explained how Lloyd

hid drug proceeds through investment properties and gambling, and the State

introduced emails from Lloyd to enterprise members while he was in prison about

enterprise operations. Finally, the trial judge’s response was sufficient to mitigate

any prejudice from the misidentification. The court asked the State and White to

82
Pena, 856 A.2d at 550-51.

20
stipulate to White’s nickname and his involvement in the bribe. Lloyd did not

request any changes to the proposed stipulation. The court then instructed the jury

that it must accept the stipulation as fact. “A trial judge is in the best position to

assess the risk of any prejudice resulting from trial events.”83 And, as we noted

above, “juries are presumed to follow the court’s instructions.” 84 The court’s

response to the misidentification cured any prejudice from Potts’ misidentification.

C.

Lloyd argues next that the Superior Court erred when it admitted statements

made by a secretary who worked for Lloyd’s former attorney, Joseph Benson. At

trial, Sykes, one of the enterprise members, testified that he arranged a drug

exchange in the parking lot of Benson’s office. Lloyd planned to drop off a

“brick”—or a kilo (2.2 pounds)— of cocaine in Sykes’ car while Sykes was meeting

at Benson’s office.85 Sykes “guess[ed]” that Benson’s secretary must have observed

Lloyd putting the drugs in Sykes’ car because she approached Sykes afterward and

said, “Don’t do that again . . . I’m going to talk to Eric [Lloyd], but don’t do that

again.”86 Over Lloyd’s objection, the Superior Court allowed the testimony under

the present sense impression exception to the hearsay rule. 87 On appeal, Lloyd

83
Revel v. State, 956 A.2d 23, 27 (Del. 2008).
84
Phillips, 154 A.3d at 1157.
85
App. to Opening Br. at A1240 (Testimony of Dante Sykes).
86
Id.
87
Id.

21
argues that the secretary’s statement did not qualify as a present sense impression.88

We review a trial court’s decision to admit or deny evidence for abuse of discretion.89
90
“Hearsay statements are generally inadmissible.” But present sense

impression is a “well recognized exception[] to the general evidentiary rule against

hearsay.”91 D.R.E. 803(1) defines a present sense impression, which is not excluded

by the rule against hearsay, as “[a] statement describing or explaining an event or

condition, made while or immediately after the declarant perceived it.”

Although it is debatable how the secretary’s statement can be characterized as

a description or an explanation of an event or condition and it is unclear from the

statement itself what the secretary perceived while or immediately before she uttered

it, any error in admitting the statement was harmless. The State apparently offered

the statement to suggest that the secretary witnessed some sort of illicit transaction

in the law firm’s parking lot. But Sykes offered first-hand testimony that he and

Lloyd had planned the drug delivery to take place in the law firm’s parking lot while

Sykes was inside. And Sykes further testified that, when he left the office following

his encounter with the secretary, he found the “brick” of cocaine under the front seat

of his car. Given this testimony, the statement attributed to the secretary, even when

88
Opening Br. at 34.
89
Wright v. State, 25 A.3d 747, 752 (Del. 2011).
90
Urquhart v. State, 133 A.3d 981, 2016 WL 768268, at *2 (Del. Feb. 26, 2016) (citing D.R.E.
802).
91
Id. (citing Wheeler v. State, 36 A.3d 310, 314 (Del. 2012)).

22
accorded its most sinister connotation, was merely cumulative and did not affect

Lloyd’s substantial rights.92

D.

The Superior Court admitted into evidence guns seized from the apartment

and storage unit of another co-defendant, Maurice Cooper. The court found that the

gun evidence was relevant and went to the State’s showing of the existence of an

illegal drug dealing enterprise.93 Lloyd argues on appeal that the gun evidence was

highly prejudicial and irrelevant, “as none of the defendants were charged with

utilizing guns generally, and certainly not the guns recovered from Cooper’s

apartment.”94 We review the Superior Court’s decision to admit or exclude evidence

for abuse of discretion.95

Evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable” 96 and is admissible unless otherwise provided by statue or rule. 97

Relevant evidence may be excluded “if its probative value is substantially

92
Super. Ct. Crim. R. 52(a) (“Any error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded.”); see also Reynolds v. State, 424 A.2d 6, 7 (Del. 1980)
(finding that the admission of opinion testimony, which “added little, if anything, to the [witness’s]
factual recitation . . . [and] amounted to little more than surplusage . . . was clearly harmless.”)
93
App. to Opening Br. at A1223.
94
Opening Br. at 36-37.
95
Wright, 25 A.3d at 752.
96
D.R.E. 401.
97
D.R.E. 402.

23
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”98

Here, the guns were found in the storage unit of an enterprise member along

with a large quantity of heroin.99 Lloyd was charged as one of the leaders of a drug

dealing enterprise. The Superior Court ruled correctly that the firearms and drugs

tended to establish the existence of a drug dealing enterprise and its business and

operations.

E.

At trial, the State admitted five music videos created by Ryan Bacon. The

videos featured combinations of enterprise members, including Bacon, Oliver,

Pritchett, Tinnin, as well as Lloyd’s co-defendants White and Anderson, among

others.100 The videos’ lyrics and imagery referred to drug dealing, gambling, high-

end homes, jewelry, and expensive cars. One video, “Coke in My System,”

contained a reference to “Butterico,” which multiple witnesses testified was Lloyd’s

nickname. 101 Coke in My System also depicted enterprise members apparently

cooking crack cocaine.102 In response to an objection, the State explained that “the

videos illustrate predicate acts and associations of members of the enterprise and that

98
D.R.E. 403.
99
App. to Opening Br. at A1224-25 (Testimony of Special Agent Haney).
100
Id. at A450-52, A455-56 (Testimony of Det. Barnes).
101
Id. at A457.
102
Id. at A473.

24
the videos assist in establishing the existence of the criminal enterprise.” 103 The

Superior Court admitted the videos, and found that, because “we’re dealing with the

racketeering case, [] it’s a requirement of the [S]tate to prove predicate offenses and

I think this goes to illustrate that.”104

On appeal, Lloyd contends that the videos should not have been admitted

against him because they were related to predicate offenses involving only the

shooting and attempted murder, for which only White was charged. Relying on

Taylor v. State,105 Lloyd further contends that the Superior Court failed to determine

whether the videos were being admitted for a proper purpose. We review the

Superior Court’s ruling on whether to admit or deny evidence for abuse of

discretion.106

Lloyd was charged with Criminal Racketeering. As discussed above, the State

was required to prove that Lloyd engaged in a “pattern of racketeering,”

demonstrated by (1) two or more incidents of conduct that constitute racketeering

activity, (2) are related to the affairs of the enterprise, (3) and are not so closely

related to each other and connected in a point of time and place related that they

constitute a single event.107 The videos were introduced to demonstrate the existence

103
Id. at A421-22.
104
Id. at A423.
105
76 A.3d 791 (Del. 2013).
106
Wright, 25 A.3d at 75.
107
11 Del. C. § 1502(5)(a).

25
of the enterprise and to link the participants to the enterprise through a pattern of

racketeering activity. 108 The videos show enterprise members glorifying drug

dealing and its financial benefits. The videos supported the existence of an illegal

drug dealing enterprise by the enterprise members appearing in the videos. Further,

the State’s witnesses, including certain members of the enterprise, established a

nexus between specific details of the videos and the circumstances of the enterprise

and the racketeering activity during the relevant timeframe.

Lloyd’s reliance on Taylor is misplaced. In Taylor, the defendant was charged

with gang participation. To prove the defendant was affiliated with the gang, the

State sought to introduce lyrics that “generally discuss[ed] drug dealing and violent

acts” and “contain[ed] statements that specifically reference[d] animosity between”

the two rival gangs at issue in the case.109 The Superior Court admitted the videos

under the co-conspirator exception to the hearsay rule because the song was

performed by a co-defendant.110 The court then conducted an additional analysis

under Getz v. State and concluded that the video was not being admitted for an

108
App. to Opening Br. at A421-22 (The State argued that “[t]he videos themselves are illustrating
predicate acts of other co-defendants associations. In fact, the first element of the most
fundamental charge in this entire case is association of fact. The state has to prove that with the
people”).
109
Taylor, 76 A.3d at 802.
110
Under D.R.E. 801(d)(2)(E), “a statement is not hearsay if offered against a party and is ‘a
statement by a co-conspirator of a party during the course and in furtherance of the conspiracy;
provided that the conspiracy has first been established by the preponderance of the evidence to the
satisfaction of the court.” D.R.E. 801(d)(2)(E).

26
improper purpose. On appeal, we held that the Superior Court did not abuse its

discretion in admitting the videos because the videos “helped establish the fact that

the TrapStars are a criminal street gang.”111 We further noted that “the determination

of whether the probative value of a particular piece of evidence is substantially

outweighed by the danger of unfair prejudice is a matter which falls particularly

within the discretion of the trial court, which has the firsthand opportunity to

evaluate relevant factors.”112

Here, the state did not rely on the co-conspirator exception to the hearsay rule

for admission of the videos. Instead, the State relied on the videos to prove the

existence of a drug dealing enterprise involving the individuals featured in the

videos. The Getz factors did not need to be reviewed before admitting the videos.

F.

Lloyd’s final claim is that his sentence of thirty years of incarceration without

the option of early release violates his constitutional protection against cruel and

unusual punishment. “The Eighth Amendment, which forbids cruel and unusual

punishments, contains a ‘narrow proportionality principle’ that ‘applies to

noncapital sentences.’”113

111
Taylor, 76 A.3d at 802.
112
Id. (quoting Williams v. State, 494, A.2d 1237, 1241 (Del. 1985)).
113
Crosby v. State, 824 A.2d 894, 904 (Del. 2003) (quoting Harmelin v. Michigan, 501 U.S. 957,
996-97 (1991) (Kennedy, J. concurring in part and concurring in judgment)).

27
 The jury convicted Lloyd of Criminal Racketeering, Conspiracy to Commit

Criminal Racketeering, Conspiracy to Deal Cocaine, Money Laundering,

Conspiracy to Commit Money Laundering, and Attempting to Evade or Defeat Tax.

Before imposing the sentence, the Superior Court addressed Lloyd directly and

explained its sentence as follows:

I did preside over the trial, so I’m familiar with the facts in the case,
and to use [Lloyd’s counsel’s] words, there are a lot of blurring of facts
and responsibility and involvement, but the bottom line is that the State
prove[d] there is beyond a reasonable doubt one large sprawling – I’ll
call it dangerous racketeering enterprise. And I say “dangerous”
because so many drugs were involved, and when we speak of victims,
who knows who could ever guess how many victims there were of
either becoming addicted, of aggravating their addiction, of persons
who were addicted committing crimes. It’s just a great big tangled kind
of web, these drug operations . . . were talking not just about crime, but
the business of crime.

***

You made the choice after serving a 14-year Federal sentence for re-
engaging in the drug racketeering business. And as [the State] pointed
out, it preceded your going back into prison for a relatively short
Violation of Probation stay.

***

What’s most concerning to [the court], . . . is after you served a lengthy
prison sentence . . . for a drug charge, you came back, and you made
the voluntary decision to reimmerse yourself into the drug world.

***

Here, a 14-year sentence didn’t get that message to you, and if one of
the functions of a sentence is to keep the streets of Delaware and

28
 elsewhere safe, it’s to put behind bars and into jail people who might
be likely to re-offend when they get out.114

The judge also observed that Lloyd was “highly, highly involved, if not a kingpin in

this.”115

The court sentenced Lloyd to an aggregate of thirty years of incarceration at

Level V to be served in its entirety under 11 Del. C. § 4204(k).116 On appeal, Lloyd

contends that his sentence is grossly disproportionate to the crimes committed and

is therefore prohibited by the Eighth Amendment. According to Lloyd, the State’s

arguments at trial were unsupported by the evidence presented. Specifically, Lloyd

challenges the State’s claims that he was the kingpin “directing the organization

through thousands of emails he sent from prison.”117 Rather, as Lloyd argues, the

State introduced only a “handful” of incriminating emails, and the rest of the emails

were merely communications between lifelong friends.118

In Crosby v. State,119 we examined the Eighth Amendment’s proportionality

requirement and established a two-part test to determine whether a particular

sentence is prohibited:

114
App. to Opening Br. at A1503-06.
115
Id.
116
Id. at A1506-07. Section 4204(k) provides that the sentencing court may require that a specified
Level V sentence “be served without benefit of any form of early release, good time, furlough,
work release, supervised custody or any other form of reduction or diminution of sentence.” 11
Del. C. § 4204(k)(1).
117
Opening Br. at 42.
118
Id.
119
824 A.2d 894 (Del. 2003).

29
 [First,] this Court must undertake a threshold comparison of the crime
committed and the sentence imposed. If such a comparison leads to an
inference of gross disproportionality, then this Court must compare [the
defendant]’s sentence with other similar cases to determine whether the
trial court acted out of step with sentencing norms.120

Crosby was convicted of forgery and received a life sentence under Delaware’s

habitual offender statute.121 We held that when the triggering crime was “a single

count of the least serious, non-violent felony,” the imposition of a life sentence was

“so disproportionate that it must be set aside.”122

Here, Lloyd’s sentence is not prohibited because a comparison of the crimes

committed and the sentence imposed does not lead to an inference of gross

disproportionality. Lloyd, unlike Crosby, was convicted of six felonies, including

Criminal Racketeering, a class B violent felony which carries up to 25 years

imprisonment under the SENTAC guidelines.123 As the Superior Court noted, Lloyd

was a three-time felon who, after serving a 14-year sentence in federal prison, opted

to reimmerse himself in the illegal drug trade. All told, Lloyd orchestrated an

expansive drug enterprise that specialized in concealing large sums of money

through sophisticated channels. Given the severity of Lloyd’s crimes, a threshold

120
Id. at 908 (internal quotation marks omitted) (quoting Harmelin, 501 U.S. at 1005).
121
Id. at 902 (finding that “Crosby’s life sentence as an habitual offender under section 4214(a)
was equivalent to a fixed term of 45 years”).
122
Id. at 912-13. The defendant’s prior history included several felonies, all of which fell in the
lowest classes of felonies—class C and below. Id. at 908-09.
123
See SENTAC Benchbook 2020 at 2 (summarizing presumptive and statutory sentences for
felonies).

30
comparison relative to the sentence imposed does not lead to an inference of gross

disproportionality. Thus, we do not need to reach the second prong of Crosby.

III.

The judgment of the Superior Court is affirmed.

31