DAVID L. ELDER, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Below: Superior Court of the State of Delaware Cr. ID No.
Submitted: November 28, 2018
STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
Strine, Jr. Chief Justice.
3rd day of December 2018, it appears to the Court that:
Defendant David Elder was convicted of (i) rape in the first
degree; (ii) rape in the second degree during the commission
of a crime; (iii) first degree burglary; and (iv) wearing a
disguise during the commission of a felony. On appeal, the
sole issue he raises is that the State was grossly negligent
by failing to first investigate whether a camera system at
his home recorded the kitchen on the night of the rape and
then preserve that evidence. Elder claims that the
surveillance video the State failed to preserve would have
not shown Elder placing a key to his victim's home into
his wife's purse, contrary to the State's theory of
the case. As a result of this failure to collect and preserve
this evidence, Elder argues that the jury should have been
instructed, under Deberry,  "that the missing
evidence would have been exculpatory."
have reviewed the record carefully and find no error in the
Superior Court's refusal to grant Elder's request for
a Deberry instruction on this ground.The Superior Court
found that the State had no duty to seek out this evidence
because the evidence was not at the crime scene and the
police knew only that some type of surveillance system was in
the home, but they did not know if it recorded. That finding is
supported by the record. The surveillance tapes that Elder
contends would have existed for 30 days were ones on a system
that he said existed in his own home. But, it was not until
after his first trial that Elder made the State aware of the
system's recording capabilities. Not only was Elder's
home not the scene of the alleged crime, but Elder was the
person uniquely positioned to bring this to the State's
attention in a timely manner. The State does not have a duty
to seek out exculpatory evidence,  and the Superior Court did
not err by finding that the State was not negligent by
failing to identify that Elder's own home had a security
system and that the system might have films relevant to an
alleged crime that occurred at a different location.
THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
 Opening Br. at 5.
 Deberry v. State, 457 A.2d
744 (Del. 1983).
 Lolly v. State, 611 A.2d 956,
961 (Del. 1992).
 "This Court reviews de
novo the Superior Court's denial of a requested jury
instruction." Gutierrez v. State, 842 A.2d 650,
651 (Del. 2003) (citing Lunnon v. State, 710 A.2d