by Doug Ankney

Sitting en banc, the Supreme Court of Delaware vacated the defendant’s convictions and remanded, holding that the prosecution’s use of indirect hearsay evidence violated his Sixth Amendment confrontation rights. Although defense counsel did not object at trial, the Court applied plain error review and determined the constitutional violation was prejudicial to the defendant’s substantial rights. Significantly, in articulating its analysis, the Court set forth a four-part framework for plain error review and expressly aligned Delaware’s prejudice standard with federal precedent, clarifying that a defendant must demonstrate “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.”

Background

Ronald Suber, Tori Balfour, Brian May, and Anna Hurst worked together to steal catalytic converters. On August 19, 2021, police pursued them after a car owner observed them attempting to remove a catalytic converter from his vehicle. During the pursuit, May and Hurst fled on foot. Hurst was apprehended and later confessed, while Suber and Balfour escaped in the getaway car.

The following day, Balfour exchanged vehicles with her cousin to obtain a car with tinted windows at Suber’s request. Suber became upset after learning of Hurst’s arrest. On August 21, Suber and Balfour picked up May and Hurst at a convenience store. Balfour testified that during the drive, Suber expressed anger that information had been disclosed to police.

According to Balfour, Suber stopped at a cornfield, opened the rear door, and shot Hurst with a golden handgun while wearing blue gloves. When May fled into the field, Suber pursued and fired twice more. Balfour observed Suber request a sharp object, retrieve something from the trunk, and walk into the cornfield. Hurst’s body was no longer visible when Suber returned. They then drove to Philadelphia, with Suber discarding his clothing and gloves en route. The autopsy revealed Hurst died from gunshot wounds and blunt force trauma to the head.

At the hospital where May received treatment for his injuries, Detective Mark Ryde showed him a photo lineup. May identified Suber as the shooter. Based on this identification, Ryde obtained an arrest warrant charging Suber with murder, attempted murder, and firearm offenses. May subsequently disappeared from the hospital before trial and could not be located.

A grand jury indicted Suber for first-degree murder, attempted first-degree murder, firearm offenses, witness tampering, and conspiracy. Balfour pleaded guilty to conspiracy in exchange for cooperation and the State’s agreement to recommend no prison time, with sentencing deferred until after Suber’s trial.

The Indirect Hearsay Evidence

At trial, the prosecution called Ryde to testify about the hospital interview with May. Through carefully worded questions, the State elicited that May was shown a photo lineup, that he identified someone, and that an arrest warrant was subsequently issued for Suber on murder and related charges. Defense counsel did not object to this testimony. Two additional detectives also testified regarding the lineup procedure without objection.

The jury convicted Suber of all charges. The Superior Court sentenced him to life imprisonment on the murder conviction plus 70 years and probation on the remaining offenses.

Analysis

On appeal, Suber argued that Ryde’s testimony constituted inadmissible indirect hearsay because it implied May had identified Suber as the shooter without May being available for cross-examination. The State conceded the error and acknowledged that relying on this evidence violated Suber’s Sixth Amendment confrontation rights. However, the State maintained that because defense counsel failed to object, plain error review applied, and Suber could not demonstrate sufficient prejudice to warrant reversal. Although the parties framed the prejudice question in harmless-error terms, the Court explained that harmless-error review applies only to preserved issues; unpreserved issues are reviewed for plain error. Kirkley v. State, 41 A.3d 372 (Del. 2012). For preserved constitutional errors, the Court applies harmless-beyond-a-reasonable-doubt review. McGuiness v. State, 312 A.3d 1156 (Del. 2024). When no timely objection is made and the trial judge does not address the issue sua sponte, the Court conducts a plain-error analysis. Saavedra v. State, 225 A.3d 364 (Del. 2020).

The Court began by emphasizing that Delaware Rule of Evidence 103 requires timely objections to preserve evidentiary issues for appeal. Del. R. Evid. 103; Wainwright v. State, 504 A.2d 1096 (Del. 1986). It explained that timely objections promote finality and allow trial courts and litigants to develop a full record for review. Shawe v. Elting, 157 A.3d 152 (Del. 2017); Alexander v. Cahill, 829 A.2d 117 (Del. 2003). The Court also reiterated that Supreme Court Rule 8 generally limits appellate review to issues “fairly presented” below, i.e., those the trial court understood and addressed. Del. Supr. Ct. R. 8; In re Oracle Corp. Derivative Litigation, 339 A.3d 1 (Del. 2025). While Rule 8 permits review of unpreserved issues when “the interests of justice so require,” the Court stated that this escape hatch is “extremely limited” and, apart from a narrow set of errors like jurisdictional defects, extends only to plain errors affecting substantial rights. Imbragulio v. Unemployment Insurance Appeals Board, 223 A.3d 875 (Del. 2019); Sup. Ct. Crim. R. 52(b); Del. R. Evid. 103(e).

Announcement of
Four-Part Framework

The Court then set forth a four-part framework for conducting plain error review. First, the reviewing court must determine whether the record is adequate to evaluate the claimed error; when the failure to object “effectively precluded the State from establishing an evidentiary record,” the Court will not conduct plain-error review. Swanson v. State, 2025 WL 3778943 (Del. Dec. 31, 2025); see Johns v. State, 2025 WL 3637521 (Del. Dec. 16, 2025).

Second, the court asks whether an error occurred, recognizing that a knowing and intelligent waiver forecloses further review. Waiver is the voluntary and intentional relinquishment of a known right. The State bears the burden to prove waiver, and courts indulge every reasonable presumption against waiver. Purnell v. State, 254 A.3d 1053 (Del. 2021); Flamer v. State, 490 A.2d 104 (Del. 1983). The Court distinguished waiver from forfeiture, which is merely the failure to timely assert a right. Purnell (quoting United States v. Olano, 507 U.S. 725 (1993)).

Third, the court considers whether the error was plain, i.e., an error under current law apparent from the appellate record; an error cannot be plain if neither the Delaware Supreme Court nor other binding authority has definitively ruled on the issue and other courts are divided. Johnson v. State, 813 A.2d 161 (Del. 2001); Capano v. State, 781 A.2d 556 (Del. 2001) (quoting Johnson v. United States, 520 U.S. 461 (1997).

Fourth, the court evaluates whether the error adversely affected substantial rights such that the error was “so clearly prejudicial as to jeopardize the fairness and integrity of the trial process.” Johnson v. State; Wainwright.

On the prejudice requirement, the Court provided important clarification regarding the applicable standard. It explained that some structural constitutional errors – such as denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt – are so prejudicial that prejudice is presumed and reversal is automatic. Greer v. United States, 593 U.S. 503 (2021); Neder v. United States, 527 U.S. 1 (1999). But for other constitutional errors reviewed under the plain error doctrine, “there must be ‘a reasonable probability that, but for the error, the outcome of the proceeding would have been different.’” Greer (quoting Rosales-Mireles v. United States, 585 U.S. 129 (2018)).

The Court explicitly stated that Delaware “hew[s] to the federal standard,” and to the extent prior decisions like Howell v. State, 268 A.3d 754 (Del. 2021), and Heald v. State, 251 A.3d 643 (Del. 2021), might be read differently, the governing test remains the “reasonable probability” formulation. See Johnson v. State, 342 A.3d 1157 (Del. 2025). Finally, the Court reiterated that the burden to show prejudice to substantial rights under plain error review rests with the defendant. Williams v. State, 98 A.3d 917 (Del. 2014).

Application of New Framework

Applying this framework, the Court determined that the first three requirements were satisfied, particularly given the State’s concession that an error occurred. The critical inquiry was whether Suber could establish that the error jeopardized the fairness and integrity of his trial.

The Court acknowledged that admissible evidence supported the conviction, including Balfour’s eyewitness account, physical evidence linking Hurst to the vehicle, and video surveillance showing the car’s movements. Nevertheless, the Court stated that constitutional violations are not treated lightly when the prosecution relies on improperly admitted evidence to identify a murder perpetrator. The State called three detectives to establish the indirect hearsay, effectively leading the jury to conclude that May, a firsthand witness, had identified Suber as the shooter.

Importantly, much of the incriminating evidence came from Balfour, who was an accomplice to the crimes and had received a favorable plea agreement. The trial court had instructed the jury to examine accomplice testimony “with more care and caution than the testimony of a witness who did not participate in the crime charged” and emphasized that this caution “becomes particularly important when there is nothing in the evidence, direct or circumstantial, to corroborate the alleged accomplice’s accusation that this Defendant participated in the crime.” The indirect hearsay evidence that May identified Suber provided precisely that corroboration, according to the Court. Absent this improperly admitted evidence, the prosecution would have depended solely on Balfour to identify Suber as the shooter.

Thus, the Court concluded that a reasonable probability existed that, absent the constitutional error, the outcome of Suber’s trial would have been different.

Conclusion

Accordingly, the Court vacated Suber’s convictions and remanded for further proceedings consistent with its opinion. See: Suber v. State, 2026 Del. LEXIS 13 (2026) (en banc).  

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