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State v. Jackson

Superior Court of Delaware

June 19, 2017


          Timothy Maguire, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Dean C. DelCollo, Esquire, Assistant Public Defender, Wilmington, Delaware, Attorney for Defendant Michael Jackson.


          Honorable Calvin L. Scott, Jr., Judge

         Before the Court is Defendant Michael Jackson's ("Defendant") Motion for Sanctions Pursuant to Deberry v. State and Lolly v. State. The following summarizes the Court's holding and analysis on Defendant's Motion.


         On August 17, 2016, Wilmington Police Department officer Matthew Rosaio ("Detective Rosaio") and SPO Scioli were in the area of the 1200 block of E. 26th Street, approaching the intersection of E. 26th Street and Northeast Boulevard. As Detective Rosaio approached the intersection, his lane of traffic had a green light. As he approached the intersection, he observed a green Mercury Marquis, traveling southbound on the 2600 block of Northeast Boulevard, disregard the red light. The vehicle proceeded through the intersection and obstructed the westbound flow of traffic. Detective Rosaio applied his brakes to avoid colliding with the green Mercury Marquis. Through the open passenger window, Detective Rosaio observed a black male with a beard, wearing a baseball cap and a black t-shirt. Detective Rosaio also observed a female in the front passenger seat. The driver reversed his vehicle out of the intersection. Detective Rosaio proceeded through the intersection and pulled to the curb on E. 26 Street. Detective Rosaio observed the vehicle turn westbound on E. 26 Street approximately 15 seconds later, and drive past the officers. The vehicle then turned northbound onto N. Thatcher Street, and subsequently traveled westbound on E. 28th Street. Detective Rosaio activated all emergency equipment to attempt a vehicle stop for the driver's red light violation. Detective Rosaio observed the vehicle pull over, but before stopping, accelerated at a high rate of speed westbound on E. 28 Street. Detective Rosaio deactivated his lights due to the amount of vehicle and pedestrian traffic in the area, and did not pursue the vehicle. Detective Rosaio relayed the vehicle information and direction of travel to Operation Safe Streets members in the area. Detective Rosaio observed the vehicle travel westbound on E. 28th Street, southbound on N. Jessup Street, and then turn westbound on E. 27 Street against the flow of traffic, and then turn southbound on Lamotte Street. The vehicle then turned westbound on 26 Street and continued across N. Market Street. The vehicle was out of the officer's sight for approximately 15 seconds. After Detective Rosaio crossed N. Market Street and continued westbound on W. 26th Street, he noticed the vehicle stopped in the 200 block of W. 26th Street at the intersection of N. Washington Street. The front passenger door of the vehicle was open, and the vehicle was running with the keys in the ignition.

         As Detective Rosaio approached the vehicle, he observed, in plain view, a firearm with a strap on the front driver side floorboard.[1] Detective Rosaio used latex gloves to remove the magazine and one live round of ammunition.[2] In the same area as the firearm was a black Samsung cell phone, Model SM-G550TI, FCC ID: A3LSMG550T. Detective Rosaio avers that he picked up the cell phone and observed the driver's face on the front screen of the phone. Detective Rosaio found a pill bottle with 28 pills of alprazolam tucked between the seat cushion, and a subpoena in the front passenger seat pocket in the name of Shonda L. Darby of 114 W. 38th Street, Wilmington, DE 19802. Detective Rosaio transported the vehicle to Wilmington Police Department and the evidence was photographed and collected. Detective Rosaio learned that the owner of the vehicle, Thomas Helm, called Wilmington Police Department stating that his son, Defendant Michael Jackson, told him to call police and report the vehicle stolen. Mr. Thomas told the police that Defendant was last seen using the vehicle several hours prior, and that Defendant uses the car to pick up his girlfriend named Shonda. Detective Rosaio retrieved a DELJIS photo of Defendant and confirmed that Defendant was the individual he saw driving the green Mercury Marquis. Eventually the firearm and cell phone were both swabbed for DNA. Two swabs were collected from each. The DNA swabs were sent to BODE Laboratory ("BODE") for DNA comparison. Detective Rosaio gave BODE permission to consume the entire sample, if necessary, by checking this option on the intake sheet.[3] Subsequently Defendant's DNA was found on both the firearm handle and the magazine. Defendant was arrested by the New Castle County Police Department.

         Parties' Contentions

         Defendant filed this Motion on May 4, 2017. Defendant contends that because he was not afforded the right to test the DNA samples using his own expert, or given the opportunity to have his own expert present during DNA testing barring that it was necessary to consume the entire sample, he is entitled to a Lolly instruction at trial. Specifically, Defendant claims that this procedure used by BODE Lab differs from the typical procedure used by the State lab, where one swab is left for Defense testing or notice is given to the Defense when testing requires consumption of the entire sample. Defense argues that the facts of this case meet all three prongs of the Deberry test, and the Court should give a Lolly "missing evidence" instruction to the jury. On the other hand, the State argues that the "issue of full consumption appears to be one of first impression in Delaware, " and the Defendant's claims do not meet the Deberry test. The State argues that the Lolly/Deberry analysis focuses on the lost and/or non-preservation of evidence, and that the evidence was not lost nor destroyed. Further, the State contends that Defendant has not alleged bad faith and/or negligence on the part of the State - a factor to consider under a Deberry analysis - because it was BODE's policy to consume the entire sample of "Touch DNA, " with permission, in order to obtain results with the highest likelihood of success.


         Generally, the State has a duty to disclose exculpatory evidence to a defendant in a criminal case.[4] This Court's rules also provide that the State, upon request, disclose certain evidence to a defendant.[5] Under both Brady and Superior Court Rule 16, the Supreme Court determined in Deberry, [6] that the "State's duty to disclose evidence . . . includes a duty to preserve it."[7] In the seminal case Lolly v. State, [8] Delaware extended this duty "to mandate that the State 'gather evidence ab initio'"[9] and "[w]here evidence is not case dispositive, a consequence for the State's failure to collect or preserve material evidence is a Lolly instruction, entitling the defendant to the inference that such evidence would have been exculpatory."[10] Essentially, this "missing evidence instruction" informs the jury "in a case where the State failed to collect or preserve evidence which is material to the defense, to assume that the missing evidence would have tended to prove the defendant not guilty."[11] The State's duty to preserve evidence is "derived from the Delaware Constitution, article I, section 7, on a basis independent of and alternative to the due process provisions of the Fourteenth Amendment."[12]Furthermore, "fundamental fairness, as an element of due process, requires the State's failure to preserve evidence that could be favorable to the defendant '[to] be evaluated in the context of the entire record'."[13] The Court applies following three prong analysis proffered in Deberry:

1. Would the requested material, if extant in the possession of the State at the time of the defense request have been subject to disclosure under Superior Court Criminal Rule 16 or Brady v. Maryland?
2. If so, did the government have a duty to preserve the material?
3. If there was a duty to preserve was the duty breached, and what consequences should flow from the breach?[14]

         If the Court determines the State breached its duty to preserve evidence the Court examines the following factors:

1. The degree of negligence or bad faith involved;
2. The importance of the missing evidence considering the probative value and reliability of secondary or substitute ...

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