Submitted: September 26, 2018
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.
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.
and Factual Background
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. 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.
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,  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.
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.
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.
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.
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.
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.
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
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.
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 Given the significant concerns
raised regarding Mr. Rone's ...