Submitted: September 30, 2014
Sarita Wright, Esquire;  Joseph Grubb, Esquire, Department of Justice, Attorneys for State of Delaware.
Patrick J. Collins, Esquire and Albert J. Roop, Esquire,  Collins & Roop, Attorneys for Defendants Dilip Nyala and Michael Irwin.
Nicole Walker, Esquire and Beth Savitz, Esquire, Office of the Public Defender, Attorneys for Defendants Hakeem Nesbitt and Braaheim Reed.
William C. Carpenter Jr. Judge
On January 14, 2014, during atrial in Kent County Superior Court, it was discovered that drug evidence that had been in a sealed envelope stored at the Chief Medical Examiner's Office Controlled Substances Unit ("OCME drug lab") was missing, despite there being no appearance of tampering. The actual drugs that were seized had been replaced with blood-pressure pills. Following this discovery, the Office of the Chief Medical Examiner ("OCME") began an internal audit but was unable to explain how the event occurred. When more discrepancies were uncovered, Delaware State Police and the Department of Justice initiated a criminal investigation, which caused them to seize all evidence at the OCME drug lab and suspend all drug testing at that facility. All drug evidence was systematically removed from the OCME drug lab and transported to Delaware State Police Troop 2 ("Troop 2") where an audit was conducted by the Delaware State Police with the assistance of officers throughout the state. The subsequent investigation has uncovered multiple issues at the OCME drug lab relating to the storage of the evidence, security at the lab, documentation of the evidence's arrival at and movement within the lab, and other failures in protocol. These issues were documented in a 36-page report issued by the Attorney General's Office on June 19, 2014.
The investigation, although still ongoing, has thus far resulted in three OCME employees being suspended, two of those employees being indicted in this Court,  and the firing of the Chief Medical Examiner. However, the full extent of the criminal conduct at the OCME drug lab is still unknown.
The issues uncovered, and those anticipated to be revealed as the investigation continues, have prompted hundreds of motions from indicted and convicted defendants at all stages of the criminal process. In an attempt to logically and procedurally address these motions, the Court decided to first attempt to address cases that were awaiting trial. To do so, the Court reached out to the State and the defense bar to schedule hearings on pending matters within that category. With the professional coordination of all parties involved, the Court has held two hearings to gather evidence regarding the events at the OCME drug lab. The first hearing, which started on July 8, 2014, involved defendants Dilip Nyala ("Nyala") and Michael Irwin ("Irwin"). The second hearing, which was held in late August 2014, involved defendants Hakeem Nesbitt ("Nesbitt") and Braheim Reed ("Reed"). During that August hearing, testimony uncovered that evidence in the Reed case had a significant discrepancy between what the officers seized and what was actually tested at the independent lab retained by the State.As a result, the State entered a nolle prosequi of the Reed case. Therefore, this Court's decision relates only to the Nesbitt, Irwin and Nyala cases. By deciding these three cases the Court's intent is to establish a framework for addressing the volume of cases awaiting trial for drug offenses that at one time were stored at the OCME drug lab. The facts surrounding these specific cases involve drug evidence that was sent to the OCME drug lab for testing but was never actually tested by a chemist at that location. However, it is expected that the Court's ruling will also have an impact on cases where the drugs were tested by the OCME drug lab, and potentially the hundreds of petitions that have been filed pursuant to Superior Court Criminal Rule 61.
Defendants are challenging the State's ability to use drug evidence at trial through filing various motions in limine. The Court will first highlight the specific factual and procedural background of each case, summarize guidance found from other jurisdictions facing similar drug lab improprieties, decide the principles to be used for cases involving drug evidence sent to the OCME drug lab and finally apply those principles to each specific defendant.
II. FACTUAL BACKGROUND
A. Michael Irwin
On September 17, 2013, the Delaware State Police arrested Irwin after he fled from an attempted traffic stop and was observed discarding suspected drug evidence, later identified as ecstasy, out of the window of his vehicle. Upon taking Irwin into custody, marijuana was also located in his car. On September 18, 2013, the Delaware State Police executed a search warrant at Irwin's residence of 2182 Washington Avenue, Elsmere, Delaware. During the search, the Delaware State Police located additional marijuana and ecstasy. Irwin was subsequently indicted by the Grand Jury on November 25, 2013 for drug dealing (ecstasy), aggravated possession (ecstasy), disregarding a police officer's signal, tampering with physical evidence, possession of marijuana, resisting arrest, drug dealing (marijuana), possession of drug paraphernalia, and endangering the welfare of a child. The evidence seized from Irwin was properly documented and stored in the drug locker at the officer's troop until retrieved by Sergeant Scott McCarthy, an evidence custodian officer of the Delaware State Police.
Sergeant McCarthy was responsible for transporting evidence from the various Delaware State Police troops located in New Castle County to the OCME drug lab. Prior to transportation of the evidence envelopes, he would visually examine the evidence for signs of tampering and would enter an evidence submission report listing the evidence he intended to submit to the drug lab on that day into the OCME drug lab's Forensic Laboratory Information Management System ("FLIMS").
The evidence receipts generated in Irwin's case established that Sergeant McCarthy delivered the evidence in the case on two different occasions. The first occurred on September 24, 2013 at 1:10 p.m and was turned over to Kelly Georgi, and a second submission was turned over on November 5, 2013 at 1:00 p.m. to James Daneshgar. Ms. Georgi and Mr. Daneshgar were both employed at the OCME as forensic evidence specialists whose duties were to receive evidence from officers and to secure and transfer the drug evidence to the chemist for testing. With these submissions, Sergeant McCarthy submitted the following evidence to the OCME drug lab for testing:
(a) 25.3 grams of ecstasy assigned number FE09736
(b) 2 marijuana blunts totaling .8 grams assigned number FE08433
(c) An additional 30.9 grams of marijuana and ecstasy totaling 2.3 grams and were assigned number FE08434. However, the submission was split into two separate containers (A) for marijuana and (B) for ecstasy.
The submission receipt signed by the officer and an OCME drug lab employee reflects that the evidence initially submitted by Sergeant McCarthy was received on September 24, 2013, but it was not logged into FLIMS until September 30, 2013 at 12:19 p.m. As to the November 5th submission, the receipt and chain of custody documents reflect that Sergeant McCarthy delivered the evidence on November 5, 2013 at 1:00 p.m., but it was not entered into FLIMS until 4:10 p.m. on that date.
As the OCME investigation proceeded, the evidence in the Irwin case was moved to Troop 2 and an audit of the materials contained in the envelopes was conducted. Upon opening the envelopes the officers weighed the substances and confirmed there was no discrepancy from that noted by the arresting officer. Subsequent testing by the independent lab, however, resulted in a finding that the drug evidence submitted in the Irwin matter contained 16.01 grams of marijuana, a difference of 14.89 grams from the weight originally documented by the police.
B. Dilip Nyala
On October 1, 2013, Wilmington Police officers received information from a confidential informant that an individual known as "Chin" was in possession of a semi-automatic firearm, and a revolver, and that he had recently received a large quantity of heroin. The informant described "Chin's" physical appearance and connected him to Building D at 2702 Eastwood Road, Manchester Arms Apartments in Elsmere. The informant also advised the officers that "Chin" distributed heroin while driving a silver 2012 Nissan Ultima and would keep the heroin in his girlfriend's second floor apartment in the 2700 block of West 5thStreet in Wilmington. Upon receiving the information, the officers responded to the Manchester Arms Apartments and observed the Nissan Ultima parked in front of Building D. They subsequently ran the license tag of the vehicle and determined it was registered to Nyala and his mother and obtained a photograph of Nyala from his driver's license. The informant was subsequently shown the photograph and positively identified Nyala as "Chin."
During subsequent searches of Nyala's apartment, his girflriend's residence, as well as the Nissan Ultima, the officers discovered 17.14 grams of heroin contained in 857 bags, 2.6 grams of heroin in 130 bags, 48 grams of crack cocaine, 66 grams of marijuana, various drug paraphernalia and a 9 mm. semi- automatic handgun together with a substantial amount of United States currency. Nyala was subsequently arrested and indicted on aggravated possession, drug dealing, possession of a firearm by a person prohibited, and possession of drug paraphernalia. The evidence seized from Nyala was taken to the Wilmington Police Department and placed in the Department's drug locker. Subsequently, the evidence control officer for the Wilmington Police Department, Corporal Arnold Lewis, who was responsible for storing, collecting and transporting the evidence seized by the Wilmington Police Department to the OCME drug lab, retrieved the evidence and logged it into the police's computer tracking system. In Nyala's case the drugs were divided into two packages with Package A indicating that it contained 48 grams of crack cocaine, 66 grams of marijuana and 17.4 grams of heroin. Package B indicated that it contained 2.6 grams of heroin.
Prior to transporting the evidence to the OCME drug lab, Corporal Lewis generated an evidence submission report and placed that information into FLIMS. From the evidence presented during the suppression hearing, it appears Corporal Lewis delivered the drug evidence in Nyala's case to the OCME drug lab on October 7, 2013 at 1:00 p.m. The evidence was received by Aretha Bailey, an administrative assistant at the OCME drug lab who was acting at the time as a forensic evidence specialist. Notwithstanding the evidence submission report to the contrary, FLIMS reported that the evidence submitted by Corporal Lewis regarding this matter was delivered to the OCME drug lab on October 7, 2013 at 3:36 p.m. and was submitted to James Daneshgar. In ...