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Ellerbe v. State

Supreme Court of Delaware

May 8, 2017

BERNARD ELLERBE, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: March 2, 2017

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1406020386

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER

         This 8th day of May 2017, upon consideration of the parties' briefs, the appellant's post-briefing submission filed on March 2, 2017, and the record on appeal, it appears to the Court that:

         (1) The appellant, Bernard Ellerbe, filed this appeal from the Superior Court's order of August 2, 2016, denying his first motion for postconviction relief under Superior Court Criminal Rule 61.[1] We conclude there is no merit to the appeal and affirm the Superior Court's judgment.

         (2) On June 25, 2014, Ellerbe was stopped after police observed him engage in an apparent hand-to-hand drug transaction through his car window. Ellerbe sped away when the police approached his car, and in the high-speed evasion that ensued, Ellerbe wrecked his car. When removing Ellerbe from the wreckage, the police found more than 260 individual glassine bags of heroin in Ellerbe's lap and nearly $12, 000 in his pockets.

         (3) Ellerbe was indicted for several drug offenses and on charges of reckless endangering, reckless driving, and disregarding a police signal. The drugs seized from Ellerbe were sent to a Drug Enforcement Administration ("DEA") laboratory where they were analyzed by a forensic chemist on December 17, 2014.

         (4) Ellerbe went to trial in late January 2015. A week before trial, an official from the DEA disclosed to the prosecutor that, on July 1, 2014, the DEA's Board of Professional Conduct issued a two-day suspension without pay to the forensic chemist who analyzed the drugs in Ellerbe's case in December 2014. The disciplinary sanction arose from the forensic chemist's alleged violation of a DEA safety protocol when handling drug evidence in a case in November 2013. Because the forensic chemist was a key witness in the State's case against Ellerbe and evidence about the safety violation, if permitted by the court, could be used by the defense to impeach the chemist at trial, the prosecutor informed defense counsel about the disciplinary sanction.[2]

         (5) Under Delaware Uniform Rule of Evidence 403 ("DRE 403"), before evidence can be used to impeach the credibility of a witness, the Superior Court must determine if the probative value of the evidence outweighs its prejudicial effect.[3] To make the determination under DRE 403 in Ellerbe's case, the trial judge conducted voir dire of the chemist, outside the presence of the jury, to determine if Ellerbe's defense counsel should be allowed to use evidence of the disciplinary sanction to impeach the chemist at trial.

         (6) During voir dire, the chemist testified that the disciplinary matter arose from her alleged violation of a DEA safety policy when she neglected to wear a protective mask when testing a large quantity of cocaine in 2013. The chemist testified that her appeal from the Board's decision was still pending before a DEA appeals official, and that, for the pendency of the disciplinary matter, she continued examining drug evidence for the DEA and to testify in cases. The chemist further testified that, if the Board's decision is upheld by the appeals official, she will continue in her duties with the DEA, and that there was no allegation that she failed to follow any protocol in Ellerbe's case.

         (7) At the conclusion of voir dire, defense counsel advised the court and opposing counsel that he would not be moving to use evidence of the disciplinary sanction to impeach the chemist because, in counsel's view, the evidence was not relevant in Ellerbe's case. In this excerpt from the voir dire transcript, the trial judge agreed with defense counsel's assessment as follows:

That's fine, I think that's appropriate after hearing the entirety of it. Under Rule 403 I do believe that probative value would be substantially outweighed by the danger of unfair prejudice in this particular case, mainly confusing the issues and really trying to have some mini trial of a personnel matter that hasn't even been fully determined yet. If there's a question as to a circumstance of not following protocol that changed the weight, the analysis or something like that, it may be more probative, but in this case, it's quite frankly not taking a safety precaution that she should have taken during testing.
* * *
And as noted through the testimony and cross-examination, even that matter and whether or not she will be held to some sanction from her own agency for violating some safety protocol or laboratory protocol of their own and again, had nothing to do with the validity of the actual testing, findings or the like, but their own personal safety ...

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