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Schaffer v. State

Supreme Court of Delaware

April 10, 2018

ZACHARY SCHAFFER, Respondent Below, Appellant,
v.
STATE OF DELAWARE, Petitioner Below, Appellee.

          Submitted: January 24, 2017

          Court Below: Family Court of the State of Delaware No. 1605005875

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

          ORDER

          Gary F. Traynor Justice

         This 10th day of April, 2018, having considered the briefs, the record below, and the argument of counsel, it appears to the Court that:

         (1) In April 2016, a sixteen-year-old high school student died after being attacked by another student in a school bathroom. She died not of blunt force trauma from the attack, but from a rare, undiagnosed heart condition that was aggravated by the emotional and physical stress of the attack. Schaffer, [1] the appellant here, was not the perpetrator, but she was charged in Family Court with conspiring with the perpetrator and a third student to assault the victim. After a bench trial, the Family Court adjudicated Schaffer delinquent of conspiracy in the third degree.

         (2) Schaffer challenges her delinquency adjudication on three grounds. First, she contends that the State violated her due process rights under the United States and Delaware constitutions by failing to recover an iPad that the school had issued to the victim, which Schaffer believes may have contained information favorable to her defense. Second, she contends that the trial judge erred by allowing the State to introduce two Snapchat videos that the State attributed to her without adequate authentication. Third, she contends that the evidence as a whole was insufficient to support the Family Court's finding that she was delinquent of conspiracy in the third degree.

         (3) We recently examined these events in connection with the charges against the student who perpetrated the attack, Tracy Cannon.[2] We focus here on Schaffer's role.

         (4) The day before the fatal attack, the victim, Alcee Johnson-Franklin, left class to meet Schaffer and Cannon in one of the school bathrooms. A feud had been brewing on social media between Cannon and Johnson-Franklin, and a faculty member who was near the bathroom reported hearing "a lot of screaming and a lot of verbal talk."[3] At trial, the State offered-and the court admitted-a short video of the confrontation, which Schaffer had allegedly recorded and posted on Snapchat. The video had a caption, which read, "[Cannon] bouta fight her." The State also offered a second video that Schaffer allegedly posted, which consisted of her, Cannon, and a third student walking down a hallway, during which could be heard, "We gonna get her. She's scared."

         (5) That night, Johnson-Franklin talked with a friend about the incident by both text message and a video call. The next morning, Schaffer, Cannon, and the third student from the video were all seen together in the school cafeteria prior to class. At trial, another student testified that, as she was on her way to school that morning, she received a call from that third student from the video, who asked her if she had arrived at school yet, and if she knew where to find Johnson-Franklin.

         (6) When Johnson-Franklin arrived at school, she passed by Schaffer, Cannon, and the third student before walking into the same bathroom as the day before. The three girls followed her. After an exchange of words between her and Cannon, Cannon attacked her. A video taken by another student captured the attack, which lasted only about a minute. Cannon "pulled [her] to the ground, threw a quick succession of awkward punches, pulled her by her hair, and then jumped on top of her. By the end, the two of them were on the floor, grappling and kicking at each other until other students pulled them apart."[4]

         (7) Soon after, Johnson-Franklin went into cardiac arrest, and less than two hours later, she was pronounced dead. Her autopsy revealed that she had suffered from a rare heart condition, which she had not known that she had. "The cause of her death was found to be 'sudden cardiac death due to [a] large atrial septal defect and pulmonary hypertension, ' with the emotional and physical stress from the assault acting as a 'contributing' cause."[5]

         (8) The State filed delinquency petitions against Cannon, Schaffer, and the third student. All three were charged with conspiracy in the third degree, and Cannon-the perpetrator of the attack-was further charged with criminally negligent homicide. The Family Court adjudicated Schaffer and Cannon delinquent of conspiracy and further adjudicated Cannon delinquent of criminally negligent homicide. The third student was found not delinquent.

         (9) During the investigation into Johnson-Franklin's death, investigators learned that the school had issued iPads to all of its students. But while they were able to locate the iPads of Cannon, Schaffer, and the third student, they were unable to locate Johnson-Franklin's. According to one of the detectives who investigated her death, they would have "love[d] to have [it], " but they never recovered it.[6] They asked Johnson-Franklin's family if they knew where to find it, but they did not. A detective on the investigation team asked the school whether they had the capability to remotely track the location of the school-issued iPads, but the detective who testified at trial did not know what came of that discussion. The detective did mention, based on his knowledge of the tracking technology-in this case, Apple's "Find My iPhone" feature-that it would work only if the iPad's battery was charged and the device was powered on. A faculty member who testified at trial confirmed that the school did have that ability to remotely track the students' iPads, but she too did not know whether any attempts had been made to use that technology to locate the missing iPad. She also suggested that the school may have had some ability to remotely monitor how the students were using their iPads, but said that they could not "necessarily go into their iPad."[7]

         (10) At trial, Schaffer argued that the State's failure to locate and turn over the iPad violated her rights under Brady v. Maryland, [8] which requires the State to turn over evidence favorable to the accused that is within the State's possession or control, and our decisions in Deberry v. State[9] and Lolly v. State, [10] which, as a matter of the due process guarantee of the Delaware Constitution, require the State to "gather [and] preserve" such evidence.[11] Schaffer speculated that the iPad may have contained evidence-in the form of text or video conversations-showing that Johnson-Franklin was just as willing to fight Cannon as Cannon was to fight her, which, Schaffer reasons, would disprove that she and Cannon had conspired to assault her.[12] Evidence the State was able to obtain of conversations Johnson-Franklin had with one of her friends the day before the attack through data recovered from the friend's device (and the friend's recollection of the conversation) gave no indication that Johnson-Franklin had been willing to fight, but Schaffer speculated that the missing iPad might contain evidence of other conversations that would show otherwise. As a remedy for the State's failure to locate and turn over the iPad, Schaffer asked the Family Court to infer that it would have contained evidence favorable to her defense.

         (11) The Family Court denied her request, reasoning that the State's duty to gather and preserve potentially favorable evidence does not extend so far as to require the State to search for evidence whose whereabouts are unknown-under penalty of a negative inference if it does not do so with sufficient diligence:

The defendant seeks to hold the State responsible for finding something that was not found and doing so under the theory that the State had an obligation to find it . . . . That is, [that] the State did not find that which, with proper investigation, not only could but would have been found. And I cannot agree with that . . . . This is not a situation where the State retrieved something or knew where it was and that it has disappeared.[13]

         (12) Deberry and Lolly's directive that the State must gather and preserve potentially favorable evidence, and Brady's directive that the State must turn it over, together form "what might loosely be called the area of constitutionally guaranteed access to evidence."[14] But while these two directives work together to "protect[] the innocent from erroneous conviction and ensur[e] the integrity of our criminal justice system, "[15] they deal with "two distinct universes" of State conduct-Brady being concerned with the evidence that is in the State's possession or control, and Deberry and Lolly being concerned with evidence that, because of the State's wrongful failure to gather and preserve it, is not.[16]

         (13) We can therefore dispense at the outset with Schaffer's contention that the State's failure to locate and turn over the iPad ran afoul of Brady. Brady applies only to evidence in the prosecution's possession or control, [17] which the iPad was not. It is true that the concept of "control" is generally understood to be broad enough to reach evidence outside of the prosecution's possession if the prosecution (or a member of the investigative team) has knowledge of and "ready access" to it, [18] but the prosecution did not have ready access to an iPad whose present whereabouts were unknown. Schaffer contends that the prosecution had control over the iPad all along because of possibility that the school could track its location, but even if all the conditions on the iPad's end were ripe for it to be tracked, the school would have been able to-at best-give investigators a potential area to search. Hollywood portrayals aside, electronic devices cannot always be tracked with pinpoint precision, [19] so even if the iPad responded to the school's efforts to track it, there still may have been more searching to do (and, depending upon where it turned up, warrants to obtain). In the end, that all may have worked, but as anyone who has lost a phone would likely agree, being able to see a spot on a map where the missing device might be is not the same as having "ready access" to it.

         (14) For that same reason, we can also dispense with Schaffer's contention that the State's failure to turn over the iPad violated the State's discovery obligations under Family Court Rule of Criminal Procedure 16. That Rule-like its Superior Court counterpart-requires the State to produce, upon request, items material to the preparation of the accused's defense. But, as with Brady, it applies only to materials that "are within the possession, custody or control of the State."[20]

         (15) The real thrust of Schaffer's argument is not that the State failed to give her access to an iPad that it had, but that the State did not do enough to track it down and preserve it. That argument is governed by Lolly and Deberry, not Rule 16 and Brady.

         (16) In Deberry, we held that the State has a duty to preserve evidence that is potentially favorable to the accused, [21] and in Lolly, we held that Delaware's due process guarantee also imposes a duty on the State to gather it.[22] Both of these duties safeguard the accused's right of access to potentially favorable evidence under Brady and Rule 16. As we have recognized, "[o]nly if evidence is carefully preserved during the early stages of investigation will disclosure be possible later."[23]

         (17) The duty to preserve evidence, under Deberry, stems from the obvious concern that, if there were no duty to preserve evidence that comes into the State's possession, "disclosure might be avoided by destroying vital evidence before prosecution begins or before defendants hear of its existence."[24] The justification for a constitutional duty to gather, under Lolly, is not as immediately apparent. But it too flows naturally from the State's duty, under Brady and Rule 16, to disclose. As we have observed, the duty to disclose does not stop with evidence in the prosecution's possession; it can reach even evidence outside the possession of the prosecution if that evidence is known and readily accessible. But if the State has no duty to gather, evidence that was known and readily accessible to the prosecution at one time or another during the investigation-like the blood observed at the crime scene in Lolly-may no longer be readily accessible or even in existence by the time of trial. A duty to preserve with no duty to gather would safeguard the accused's right of access to evidence in the State's possession while leaving unguarded the right, under Brady and Rule 16, to evidence outside of the State's possession that the prosecution knows about and has ready access to. The duty to gather, then, ensures that the full sweep of the accused's rights under Brady and Rule 16 are protected.

         (18) But just as the scope of Brady and Rule 16 justifies a duty to gather, so too does it suggest its limits. A duty to gather evidence that investigators know about and have ready access to can be comfortably squared with the prosecution's duty to disclose known and readily accessible evidence, but as the duty to gather extends beyond those bounds, it becomes more tenuous.

         (19) Our cases bear that out. We have faulted the State for failing to gather evidence that it knew of and had ready access to during an investigation, like blood observed at a crime scene, [25] cigarette butts lying near a victim's body, [26] or clothing concealing firearms, [27] but we have not when the evidence in question was further afield, like surveillance videos in the hands of private parties or information from a victim's social media account.[28]

         (20) This understanding of the limits on the duty to gather evidence ensures that it does not grow into a more expansive (and burdensome) constitutional imperative "to seek [it] out."[29] And that distinction is dispositive here. Schaffer faults the State for not making use of the school's tracking abilities to help it recover the missing iPad, [30] but while investigators had hoped to find it, the iPad was never, as we have observed, readily accessible to them. So even if the State neglected to avail itself of the school's tracking abilities as part of its search, recovering the iPad did not fall within the scope of ...


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