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State v. Benson

Superior Court of Delaware

May 31, 2017

KARL BENSON, Defendant.


          John A. Parkins, Jr. Superior Court Judge

         Presently before the court are two motions: (1) a motion to exclude an utterance made by witness Dominique Roberson to the police; and (2) a motion under Deberry v. State to exclude evidence relating to phone texts or, alternatively, a motion for an adverse presumption instruction relating to those texts. The court has conducted two evidentiary hearings relating to these motions. The following summarizes the court's rulings and the reasons for them.


         Defendant is charged with Drug Dealing, Conspiracy and Possession of a Controlled Substance. According to the State, in April 2016 the police received a tip that Defendant was selling heroin and that he used a phone with the number 302-401-3806. The county police made contact with Defendant through that telephone number via text messages. The police then contacted that phone number using text messaging and arranged to purchase five bundles of heroin for two hundred dollars on April 13 at an All Stop parking lot outside of Newark. At 2256 hours that night, an undercover police officer texted Defendant he was in the parking lot in a Chevrolet Impala, and Defendant responded he was walking toward the Impala. Shortly thereafter the police observed Defendant and a female, later identified as Dominique Roberson, approach the All Stop and pause at the front door. The female then walked over to the Impala, at which time an officer sitting in the Impala asked her "you good?" She responded "I'm good." The police testified at the first evidentiary hearing that this verbal exchange is code for ascertaining if the drug purchase is going forward. At roughly the same time as the female approached the Impala one of the police officers received a text from Defendant "I'm here." Both the female and Defendant were promptly arrested. A search of the female revealed five bundles of heroin and a white Samsung Galaxy cell phone; a search of Defendant revealed a black Samsung Galaxy phone with a cracked screen.


         The court will first consider the objections to Roberson's question to the police about the amount of the narcotics. It will then consider the Deberry challenges relating to the lost phone texts.

         1. The Roberson Question to the Police

         While being transported to the station after her arrest Ms. Roberson asked the officers "Do you know how much dope it was?" Defendant seeks to exclude this statement because (1) it is hearsay and (2) admission of the statement deprives him of his right to confront the witnesses against him.

          Ms. Roberson's question to the officers is not hearsay because it was not an "assertion." The term "hearsay" is defined by the Rules of Evidence as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."[1] A key element of this definition is that the utterance[2] must be a "statement." The rules, in turn, define "statement" as "an oral or written assertion."[3] Ms. Roberson's question "do you know how much dope it was?" is not an assertion. "A question, by its very definition, is not an assertion."[4] Thus, according to the Third Circuit Court of Appeals, "[c]ourts have held that questions and inquiries are generally not hearsay."[5] The court therefore DENIES Defendant's motion to exclude that question on the basis of hearsay.

         Defendant's second ground for the exclusion of Ms. Roberson's statement is based on the Confrontation Clause of the federal Constitution. That clause, however, is not implicated here because Ms. Roberson is available to testify at trial and is subject to cross-examination. Her availability is enough to satisfy the Confrontation Clause: "The Confrontation Clause of the Sixth Amendment gives the accused the right 'to be confronted with the witnesses against him.' This has long been read as securing an adequate opportunity to cross-examine adverse witnesses."[6] As one federal appeals court similarly put it:

The Confrontation Clause is satisfied when the hearsay evidence falls within a firmly rooted exception to the hearsay rule or is supported by facts that otherwise demonstrate the statement's reliability; the Confrontation Clause is alternatively satisfied when the hearsay declarant testifies at trial and is available for cross-examination.[7]

         Defendant's motion to exclude Ms. Roberson's statement on the basis of the Confrontation Clause is therefore DENIED.

         2. The Deberry Challenge to the Text Messages

         The text messages exchanged between the police and the Defendant have been lost, and Defendant has moved to exclude evidence of them. Alternatively, he asks that the jury be instructed that it should presume the text messages were exculpatory. In this regard the court has made factual findings based upon the evidence adduced at the two evidentiary hearings:

• As commonly done, the police used a pre-paid cell phone when they texted the Defendant. They do this so that their cell phone numbers change frequently and therefore do not become familiar to drug dealers.
• The County police borrowed a pre-paid cell phone from a State police officer to use in this investigation. After the transaction was completed and Defendant was arrested, the County police returned the pre-paid phone to the State police officer who had lent it to them. At some unknown time thereafter the pre-paid phone was lost or discarded.
• The police seized two cell phones at the time of the arrest; one belonged to Ms. Roberson and the other belonged to Defendant. The screen of Defendant's phone contained the message "Na im waitn here" and indicates it was sent at 11:20 p.m. from the borrowed pre-paid cell phone the county police were using.
• The police obtained a warrant to search Defendant's cell phone. When they attempted to search the contents of the phone's memory they were able to recover the phone's sim card, but they found that access to the phone's memory was blocked and required a password to open it.
• The forensic unit of the County Police unsuccessfully tried several non-destructive methods to obtain access to the phone's memory. After exhausting all reasonable methods the police opted to use a technique known as a "chip-off." This method entails heating the cell phone so that the memory chip can be physically extracted. Once the memory chip is extracted it is connected to a device which attempts to read the data on the chip. The chip-off destroys the phone, and once this method is used there is no further recourse for obtaining the data in it.
• According to the forensic detective who tried to obtain the data from the phone and who performed the chip-off, the chip-off technique has been successful approximately 85 percent of the times the county police have used it. No data has been recovered in the remaining 15 percent and, because of the destructive nature of the test, that data has likely been lost forever.
• The chip-off attempt was made on May 4, 2016-roughly three weeks after Defendant had been arrested. At no time did the police seek to obtain the pass code from Defendant or his attorney, and neither Defendant nor his attorney was notified in advance by the police that they intended to perform a destructive test. (It is unclear from the record whether Defendant was represented at that time. The earliest indication that Mr. Benson was represented is a May 13 letter from a prosecutor to Defendant's former counsel accompanying the State's discovery response.)
• With commendable candor the police admitted at the second evidentiary hearing that there were no exigent circumstances ...

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