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State v. Pierce

Superior Court of Delaware, Kent

October 1, 2018

State
v.
Larry J. Pierce

          Submitted: September 26, 2018

         Counsel:

         Defendant Larry J. Pierce (hereinafter "Mr. Pierce") is charged with Murder First Degree for allegedly murdering Josue Barclay on April 18, 2009. This Order provides the Court's decision regarding Mr. Pierce's motion in limine to exclude evidence of a 9mm casing (hereinafter the "subject casing") that the Dover Police allegedly recovered from the scene of the homicide.

         Mr. Pierce moves to exclude this evidence as well as the testimony of its firearms identification expert, Stephen Deady (hereinafter "Mr. Deady"). Based on his February 26, 2018, testing, Mr. Deady opines that a firearm possessed at some point by Mr. Pierce fired the round producing the subject casing. For the reasons that follow, Mr. Pierce's motion to exclude the evidence based on chain of custody concerns is DENIED.

         Procedural and Factual Background

         Despite the fact that this trial is scheduled as a bench trial, the Court held a hearing in advance of trial pursuant to Delaware Rule of Evidence 104(a) (hereinafter "Rule 104(a)") to determine the subject casing's admissibility.[1] A primary issue generating this chain of custody dispute is the nine-year gap between the homicide and the trial. A second, and more vigorously argued issue, involves allegations that the State's first firearms examiner, Carl Rone (hereinafter "Mr. Rone"), was recently charged with falsifying business records related to his employment. He is currently awaiting trial on those charges. Mr. Rone single-handedly controlled the subject casing at issue while testing it in April 2009. Because he relies upon business records to support his testimony regarding chain of custody, Mr. Pierce asserts that the State cannot meet its chain of custody burden.

         Mr. Pierce's case is three years and three months post-indictment. When the allegations involving Mr. Rone arose, Mr. Pierce was on the eve of trial. After Mr. Rone's allegations became public, the State requested a continuance to secure another firearms expert. Thereafter, Mr. Pierce filed a motion in limine contesting the State's ability to establish the chain of custody. At the request of both the State and Mr. Pierce's attorneys, but over the objection of Mr. Pierce himself, [2] the Court again continued the trial until October 9, 2018. The Court rescheduled the trial for that date because it was to follow Mr. Rone's trial. In the interim, however, the Court has continued Mr. Rone's trial until after October 9, 2018.

         At an office conference in August 2018, both parties and the Court discussed the fact that Mr. Rone's trial would not conclude before Mr. Pierce's trial. As a result, the Court scheduled a pre-trial hearing to resolve Mr. Pierce's motion in limine. The Court scheduled the hearing in advance of trial because Mr. Pierce raised significant issues regarding the effect of Mr. Rone's alleged conduct on the State's ability to establish the chain of custody of the subject casing. In addition, as the Court noted in an office conference, the State had not articulated, either through its written responses or otherwise, what evidence it had available to establish the chain of custody of the subject casing.

         After Mr. Rone's separation from State employment in January 2018, the State secured Mr. Deady's opinion. Given Mr. Rone's issues, the State does not intend to offer his opinion at trial. Accordingly, Mr. Rone's testimony is only relevant for chain of custody purposes because he alone received, handled, and tested the evidence in 2009, shortly after the homicide.

         The Court scheduled a stand-alone evidentiary hearing after recognizing that: (1) the State has charged Mr. Rone with falsification of business records; (2) the evidence logs and reports prepared by Mr. Rone and used to establish the chain of custody are also business records; and (3) Mr. Pierce has the right to both voir dire State chain of custody witnesses with questions regarding Mr. Rone's alleged conduct, and to present extrinsic evidence in a Rule 104(a) chain of custody hearing. All parties and the Court initially operated under the assumption that Mr. Rone would not testify. That changed, however, when Mr. Pierce very recently notified the Court that the State would present Mr. Rone's testimony at the hearing. On the first day of the hearing, the State provided Mr. Rone testimonial immunity and then presented his testimony.

         Over two days, the Court heard testimony from several State witnesses, including Mr. Rone. The record before the Court includes: the testimony and exhibits offered at the chain of custody hearing; Mr. Rone's prior sworn testimony and exhibits offered at a Daubert hearing on January 12, 2018; and Mr. Deady's sworn testimony and the exhibits offered at his Daubert hearing on April 25, 2018.

         Mr. Pierce's Arguments

         At the conclusion of the Rule 104(a) hearing, Mr. Pierce argued that the State failed to meet its obligations regarding chain of custody because of the nature of the item at issue, and because the State relied on the professional integrity of Mr. Rone to meet its burden. Mr. Deady examined a 9mm casing recovered from the homicide scene that was in Mr. Rone's sole possession for a time. At the hearing, Mr. Rone testified that he normally test fired four like caliber rounds and compared their casings to a subject casing. When performing his comparative analysis, all four of the test casings would be kept on one side of the testing table while the subject casing remained on the other side of the testing table at all times. After firing the test rounds, in Mr. Pierce's case, Mr. Rone compared the test casings to the subject casing under a microscope, as was his regular practice, and offered his opinion at a Daubert hearing that the test casings and the subject casing were fired from the same firearm allegedly possessed by Mr. Pierce.

         Given this practice, Mr. Pierce argues that there was a significant opportunity for misidentification or commingling of the subject round with a test round. On balance, Mr. Pierce argues that Mr. Rone could have commingled the rounds by either inadvertently or advertently switching a test round for the subject round. If this were to happen, Mr. Deady's subsequent analysis nine years later would in fact be comparing an old test round to a new test round, and would thus mistakenly link the firearm to the scene of the homicide.

         With regard to broader chain of custody concerns, Mr. Pierce also argues that there is no evidence regarding how Mr. Rone handled the evidence during the time of his April 2009 examination. Likewise, he argues there is no such evidence regarding Mr. Deady's 2018 testing. This lack of evidence, he argues, creates significant breaks in the chain of custody. He also argues that a discrepancy between the Dover Police Department's computer logged evidence entries, and the envelope housing the evidence, demonstrate breaks in the chain of custody.

         Finally, Mr. Pierce acknowledges that Delaware law provides that the State's burden regarding chain of custody is lenient and that breaks in that chain generally go to the weight the trier of fact must give the evidence, rather than its admissibility. Mr. Pierce argues, however, that this is an extraordinary case as recognized by the Delaware Supreme Court's recent Superior Court Criminal Rule 61 decision in Fowler v. State[3] Given the significant concerns raised regarding Mr. Rone's ...


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