            IN THE SUPREME COURT OF THE STATE OF DELAWARE


ANZARA BROWN,                             §
                                          §      No. 603, 2013
      Defendant Below/Appellant,          §
                                          §      Court Below: Superior Court
       v.                                 §      of the State of Delaware,
                                          §      in and for Kent County
STATE OF DELAWARE,                        §
                                          §      Criminal ID No. 54840995
      Plaintiff Below/Appellee.           §

                              Submitted: June 17, 2015
                               Decided: June 17, 2015

Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.


Upon appeal from the Superior Court. AFFIRMED.


Sandra W. Dean, Esquire, Camden, Delaware, for Appellant.


Kathryn J. Garrison, Deputy Attorney General, Department of Justice, Georgetown,
Delaware, for Appellee.



STRINE, Chief Justice:
                                I.     INTRODUCTION

       Anzara Brown was convicted on various charges of drug dealing and drug

possession following a jury trial in the Superior Court. In his direct appeal to this Court,

Brown challenged three decisions of the Superior Court regarding the admissibility of

certain evidence used against him at trial. Because we find that the Superior Court acted

within its discretion to deny Brown‟s suppression motions and admit the evidence, we

affirm his judgment of convictions.

       At oral argument on Brown‟s appeal to this Court, his counsel informed the Court

for the first time that James Woodson, the courier for the Office of the Chief Medical

Examiner (“OCME”) who handled the drug evidence seized from Brown following his

arrest, had been indicted for alleged improprieties, including the theft of drug evidence

for personal use. Woodson‟s indictment resulted from a larger investigation into

evidence mishandling at OCME. This Court stayed Brown‟s appeal and remanded the

case to permit him to file a motion for a new trial, given the new evidence of Woodson‟s

alleged misconduct. On remand, the Superior Court denied Brown‟s motion, finding that

the newly discovered facts would probably not have changed the results in his case. The

matter was then returned from remand, and the parties filed supplemental briefs.

       We conclude that the Superior Court was within its discretion to deny Brown‟s

motion for a new trial. Although sloppy evidence-handling practices and potentially

worse behavior by OCME employees is disappointing and regrettable, there is no rational

basis to infer that any sloppiness or other improprieties at OCME resulted in any injustice

to Brown. Brown admits that he possessed cocaine in more than sufficient amount to

                                              1
justify his convictions, and there was overwhelming evidence of his guilt separate from

the drugs seized from him. Accordingly, we affirm the Superior Court‟s denial of his

motion for a new trial.

                           II.    FACTUAL BACKGROUND1

       Brown‟s arrest resulted from an extensive police investigation into an alleged drug

trafficking syndicate run by Galen Brooks.2 In addition to using undercover purchasers

and confidential informants, the police obtained a warrant to wiretap Brooks‟ cell phones,

and conducted video surveillance of Brooks‟ house and physical surveillance of the

entrance to his neighborhood. On May 31, 2012, officers listened to four calls in which

Brooks and an unknown man arranged for the man to buy cocaine from Brooks. In the

last call, which took place at 5:35 p.m., the man told Brooks that he would be at Brooks‟

house in approximately seven minutes to pick up the drugs. The officers listening to the

telephone conversations, including Sergeant Lance Skinner of the Delaware State Police,

relayed that information to the officers conducting surveillance. Sergeant Skinner then

travelled to the area near Brooks‟ house to wait for the unknown man.

       At the same time, Detective Jordan Miller of the Dover Police Department was

conducting video surveillance of Brooks‟ house. Detective Miller watched another man,

John Price, leave Brooks‟ home at 5:48 p.m.3 The police were familiar with Price‟s voice

and telephone number from the investigation and believed that Price was not the

1
  The undisputed facts are taken from the record at trial and on appeal.
2
  See State v. Brooks, 2013 WL 4051049 (Del. Super. July 30, 2013); see also Ayers v. State, 97
A.3d 1037, 1038 (Del. 2014) (affirming the convictions of another defendant involved in
Brooks‟ syndicate).
3
  The record does not indicate the time that Price arrived at Brooks‟ house.
                                               2
unknown man from the four telephone calls. Three minutes after Price left, or roughly

sixteen minutes after the fourth phone call, an unknown woman and a man later identified

as Anzara Brown arrived at Brooks‟ home. Brooks came out to meet them and they went

around the side of the house, out of view of the camera. Approximately five minutes

later, Brown and the woman left Brooks‟ home. Brooks himself left a minute later,

indicating to the police that he was no longer waiting for the unknown man from the

telephone call to arrive. Detective Miller informed the other officers involved with the

investigation.

          Sergeant Skinner followed Brown‟s vehicle in his patrol car for two to three miles

after it left Brooks‟ house. Sergeant Skinner then stopped the vehicle and asked Brown

to step outside on the pretext that there was a problem with his registration. Sergeant

Skinner testified at Brown‟s trial that he recognized Brown‟s voice from the telephone

calls earlier that day.4 When Brown stepped out of his vehicle, Sergeant Skinner arrested

him. He then conducted a pat-down search of Brown and found what he described as two

bags of cocaine contained in a pouch in Brown‟s front pocket. One of the bags contained

three smaller bags, for a total of five bags. Sergeant Skinner transported the drugs to the

police station, where two other officers, Sergeant Jeremiah Lloyd and Master Corporal

Jeffrey Lavere, field-tested and weighed the contents and sealed the bags to transport to

the Office of the Chief Medical Examiner. According to Sergeant Skinner‟s testimony at

trial, three of the bags contained crack, and one of the bags contained powder cocaine.5


4
    App. to Opening Br. at 66 (Trial Test. of Skinner, Sept. 9, 2013).
5
    Id. at 74.
                                                   3
There was also a small amount of powder cocaine in the bag that contained the three

smaller bags. The Delaware State Police Evidence Report indicated that the bags

together contained approximately 1.2 grams of powder and 20 grams of crack cocaine.6

       Sergeant Skinner searched Brown again at the police station and found a small bag

of marijuana and a pair of brass knuckles in Brown‟s pocket. In a statement to the police,

Brown admitted that he had an ounce of cocaine (approximately 28 grams), and that he

intended to sell it. He gave the police his cell phone number, which matched the one

captured on the wiretap. After he was released, Brown was also recorded on a wiretap

speaking on the phone with Brooks, describing his arrest and the seizure of the drugs, and

assuring Brooks that he would not “fall short.”7

       Ultimately, fourteen defendants were indicted for their involvement in the drug

syndicate, including Brooks and Brown.8 Brown moved to sever his case from the other

defendants, which the Superior Court granted. Brown also filed two pre-trial motions,

one to suppress the evidence seized from him following his arrest and another to suppress

the evidence from the wiretaps. The Superior Court denied both of those motions.

       At Brown‟s trial, Sergeant Skinner, Sergeant Lloyd, and Master Corporal Lavere

all testified about the cocaine seized from Brown. Despite the evidence report filed by

Sergeant Lloyd and Master Corporal Lavere indicating that Sergeant Skinner had seized

1.2 grams of powder cocaine from Brown, Sergeant Skinner testified that he had

collected 8 grams of powder cocaine from Brown, in addition to the three bags of crack

6
  Opening Br., Ex. F (Delaware State Police Evidence Report).
7
  State v. Brown, ID #1205025968A, at 5 (Del. Super. Dec. 18, 2014) (letter order).
8
  See App. to Opening Br. at 8-47 (Indictment by the Grand Jury).
                                               4
cocaine.9 Patricia Phillips, the OCME forensic examiner responsible for testing the

cocaine seized from Brown, also testified at trial. She stated that when she received the

envelope containing the drugs seized from Brown, the seal was intact and there was no

sign of tampering. Phillips‟ report indicated that there were five bags of cocaine, but in

different quantities than the officers indicated: one bag of “white powder” containing

7.03 grams; one bag of “white powder” containing 0.67 grams; and three bags of an “off-

white chunky substance” containing approximately 15.53 grams.10

       During Phillips‟ testimony, Brown objected to the admission of the cocaine

evidence. He contended that the discrepancies between the Police Evidence Report and

the Medical Examiner‟s report suggested that there were concerns with the integrity of

the evidence, and thus its admissibility.11 In particular, Brown emphasized that the police

officers‟ account of which bags contained crack or powder did not match the Medical

Examiner‟s report.12 Brown‟s attorney requested that she be able to question Phillips

about the “transport from Troop 3 to the medical examiner‟s office.”13 The Superior

Court denied that request, noting that 10 Del. C. § 4331 defines the chain of custody as

the “seizing officer, the packaging officer, and the medical examiner,” all of whom had

testified at Brown‟s trial, which Brown‟s attorney conceded.14


9
  App. to Answering Br. at 143 (Trial Test. of Skinner, Sept. 9, 2013).
10
   App. to Supp. Opening Br. at 67 (Controlled Substances Laboratory Report).
11
   App. to Answering Br. at 173 (Tr. of Arguments, Sept. 10, 2013).
12
   See App. to Answering Br. at 161-63 (Tr. of Arguments, Sept. 10, 2013).
13
   Id. at 175.
14
   Id. During oral argument before this Court, the State‟s attorney suggested that Brown
requested to cross-examine James Woodson, the OCME courier who handled the drugs seized
from Brown and who was later indicted for allegedly tampering with evidence. See Oral Arg‟t
Tr. (May 28, 2014), available at http://courts.delaware.gov/supreme/oralargs/video/2014-05-
                                              5
       In responding to Brown‟s objection, Phillips clarified in a sidebar with the

Superior Court and both attorneys that her references to particular bags were not intended

to correspond to the officers.15 The State pointed out that both reports described three

bags of crack cocaine and one bag of powder cocaine, in addition to the outer bag, which

contained a small amount of powder cocaine, although there were weight differences

between the reports of powder and crack.16 Phillips also explained during the sidebar that

“sometimes . . . powder . . . clumps together and it appears to be a chunky substance

when it is more powdery. . . . My description is that it‟s chunky. That‟s not a clinical or

chemical differentiation. It is a description of how the evidence appears.”17 She noted

that because Delaware‟s drug laws do not differentiate between powder and crack

cocaine, she did not specifically delineate the form of the cocaine beyond its appearance

in her report.18 Phillips also explained that she did not weigh the drug packaging, which

the State offered as an explanation for the discrepancy between the weight of the powder

cocaine she testified to compared to Sergeant Skinner‟s testimony, even though the total

amount of cocaine she reported (23.23 grams) was more than that reported by the police

(21.2 grams). The Superior Court determined that the drug evidence was admissible,

28_603,_2013_Brown_v_State_of_Delaware.mp4. Based on the transcript of the trial in the
record, though, it does not appear that Brown ever suggested that Woodson should testify. See
App. to Answering Br. at 175 (Tr. of Arguments, Sept. 10, 2013). Cf. Milligan v. State, 2015
WL 3622880, at *4-5 (Del. June 10, 2015) (discussing the requirements to establish a chain of
custody under Delaware and federal law, and observing that the U.S. Supreme Court held in
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), that “not every individual who may have
relevant testimony for the purpose of establishing chain of custody must appear in person as part
of the prosecution‟s case”).
15
   See id. at 170.
16
   See id. at 171-72.
17
   App. to Opening Br. at 167-68 (Tr. of Arguments, Sept. 10, 2013).
18
   Id. at 167.
                                                6
noting that “I don‟t think there‟s any reasonable possibility that the drugs got mixed up

with some other drugs that were not on [Brown‟s] person into those envelopes. . . .”19

          Following a three day trial, Brown was convicted by the jury of one count each of

drug dealing at Tier 4, aggravated possession of a controlled substance, carrying a

concealed deadly weapon, possession of a deadly weapon during the commission of a

felony, conspiracy in the second degree, criminal solicitation in the second degree, and

possession of marijuana. The Superior Court sentenced Brown as a habitual offender to

two life sentences for the charges of drug dealing and aggravated possession of a

controlled substance. Brown was sentenced to a total of twenty-nine years and six

months‟ imprisonment, suspended after 27 years, on the remaining charges.

                             III.    PROCEDURAL HISTORY

                                A.     Brown’s Direct Appeal

          Brown appealed his convictions directly to this Court. In that appeal, Brown

raised three claims: (1) that the trial court abused its discretion in admitting the evidence

obtained as a result of the traffic stop; (2) that the trial court abused its discretion in

admitting into evidence telephone calls that had been intercepted by the court-ordered

wiretap; and (3) that the trial court abused its discretion by admitting cocaine into

evidence when the State failed to establish an adequate chain of custody.

          At oral argument, defense counsel informed the Court for the first time that the

OCME courier who handled the cocaine seized from Brown, James Woodson, had been

indicted and arrested on suspicion of improperly handling evidence. In light of his

19
     Id. at 178.
                                                7
argument before the trial court and on appeal that there were discrepancies between the

weight and type of cocaine reported by the packaging officer at the police station and by

the Medical Examiner, Brown contended that the possibility that Woodson had tampered

with the cocaine seized from Brown at least warranted a remand to the Superior Court to

re-evaluate his arguments about the chain of custody. In response, this Court requested

that counsel supplement the record to formally provide us with information about

Woodson‟s indictment. The State complied by submitting a copy of the indictment,

which alleged, among other counts, that Woodson had engaged in trafficking in cocaine,

tampering with physical evidence, and official misconduct. At that point, only two

OCME employees, Woodson and chemist Farnum Daneshgar,20 had been accused of any

misconduct.21

       On June 9, 2014, this Court issued an order staying Brown‟s appeal and

remanding the case to the Superior Court to permit Brown to file a motion for a new trial

on the grounds of newly discovered evidence.22 We ordered the Superior Court to issue

periodic progress reports and retained jurisdiction.




20
   Daneshgar was not involved in testing the evidence seized from Brown.
21
   The Court takes judicial notice that James Woodson pled guilty on May 18, 2015, to official
misconduct and providing criminal history record information to an unauthorized person.
Farnam Daneshgar was tried by a jury on charges of possession of marijuana and possession of
drug paraphernalia. The State dismissed those charges on May 1, 2015, after the jury failed to
reach a unanimous verdict.
22
   We also ordered the Superior Court to correct errors in Browns‟ conviction and sentence that
the State identified before oral argument. See Brown v. State, No. 603, 2013 (Del. June 9, 2014)
(order).
                                               8
                        B.      Remand Following Oral Argument

       The Superior Court denied Brown‟s motion for a new trial on December 18, 2014.

Although the Superior Court agreed with Brown that the alleged improprieties by the

OCME employees were “newly discovered” and more than “merely cumulative or

impeaching,” it determined that “the evidence was not of a nature that it would have

probably changed the result,” as required to grant a new trial.23 The Superior Court noted

that Woodson had been accused of stealing drugs in evidence for use as drugs—either for

personal consumption or sale—and no OCME employee had been accused of planting

drugs to obtain false convictions.24 The Superior Court also determined that even without

the seized drug evidence, the other “evidence is simply overwhelming.”25 The Superior

Court noted that Brown‟s voice was captured on wiretaps setting up the purchase of

cocaine, he was observed arriving at Brooks‟ house and leaving several minutes later, and

he was arrested with what he admitted was over 20 grams of cocaine that he intended to

sell after receiving a proper Miranda warning. After he was released, apparently

unaware of the wiretaps, Brown also called Brooks and described his arrest, which the

jury was able to hear at trial. As a result, the Superior Court concluded that the new

evidence of Woodson‟s alleged evidence-tampering “was not of a nature that it would

have probably changed the result,” and denied Brown‟s motion for a new trial.26 Brown



23
   State v. Brown, ID #1205025968A, at 3 (Del. Super. Dec. 18, 2014) (letter order) (citing Hicks
v. State, 913 A.2d 1189, 1194 (Del. 2006)).
24
   Id. at 4 (citing 2014 WL 6734821, at *8-9 (Del. Super. Nov. 17, 2014)).
25
   State v. Brown, ID #1205025968A, at 6 (Del. Super. Dec. 18, 2014) (letter order).
26
   Id.
                                                9
appealed the denial of that motion, and the Superior Court accordingly returned the

matter to this Court.

                C.      Return to the Supreme Court Following Remand

       Before Brown filed his supplemental opening brief, the State provided him with

the results from its re-testing of the substance seized from him after his arrest. The

Superior Court had ordered the evidence to be re-tested in deciding on a motion for a new

trial filed by Galen Brooks, who was tried separately. The results from that test,

conducted by the independent NMS Labs, confirmed that the substance was in fact

cocaine.27 Although the NMS report does not delineate between powder and crack

cocaine, it does provide that the total weight of the drugs was 22.08 grams, which is

similar to the amount reported by the officers after Brown‟s arrest and by OCME, and is

over 20 grams, the minimum required for a Tier 4 offense.28 The NMS report was also

consistent with Brown‟s own admission that he had an ounce of cocaine.

       The re-testing results were not the only addition to the record following remand.

After Brown filed his supplemental opening brief and the State responded, the State

disclosed that Patricia Phillips, the OCME forensic examiner who tested the drugs seized

from Brown and then testified at Brown‟s trial, had been suspended from the Division of

Forensic Science (the successor to OCME) and later resigned. The State‟s

documentation explained that there were three incidents leading to Phillips‟ suspension

and resignation: she reportedly “lost” a bag of heroin in her lab coat pocket; she took

27
  App. to Supp. Answering Br. at 9 (NMS Labs Final Report).
28
  The amounts of cocaine reported by NMS in the five bags were: 6.83 grams, 6.60 grams, 2.15
grams, 6.05 grams, and 0.45 grams. See id.
                                             10
evidence with her into the bathroom, a violation of protocol; and discrepancies were

found in another case between the evidence found in her locker and her description of the

evidence as logged in.29 Brown argued that this additional evidence of misconduct by an

OCME employee raised “a definite probability of adulteration or tampering,” requiring

reversal of his convictions.30

                  D.      BROWN’S CLAIMS ON DIRECT APPEAL

       Before assessing the merits of Brown‟s motion for a new trial on remand, we need

to address the claims raised by Brown in his direct appeal to this Court. Our evaluation

of these claims is necessarily based on what the trial judge and parties knew at the time of

Brown‟s trial. We conclude that none of these claims have merit, and therefore affirm his

judgment of convictions.

       Brown argues that the Superior Court erred in admitting into evidence recordings

of his telephone calls obtained through the court-ordered wiretap. He contends that the

police lacked probable cause to obtain a warrant to record his cell phone conversations

because the police only had a “mere suspicion” that he would arrange a drug deal with

Brooks.31 Brown did not challenge the sufficiency of the evidence supporting the

magistrate‟s determination that there was probable cause to wiretap Brooks‟ main




29
   See App. to Supp. Reply Br. at 23-24 (Corrective Action Request Form, Oct. 6, 2014); id. at
25-26 (Corrective Action Request Form, Oct. 9, 2014); id. at 27-29 (Corrective Action Request
Form, Feb. 27, 2015).
30
   Supp. Reply Br. at 4.
31
   Opening Br. at 12.
                                              11
telephone number. Instead, Brown challenges the breadth of the “net” cast by the wiretap

to include the number Brooks was using on the date of Brown‟s arrest.32

       Under 11 Del. C. § 2407(c)(1), a judge is permitted to authorize a wiretap if she

determines “on the basis of the facts submitted by the applicant” that:

       a. There is probable cause for belief that an individual is committing, has
       committed, or is about to commit an offense enumerated in § 2405 of this
       title [including dealing in narcotic drugs]; b. There is probable cause for
       belief that particular communications concerning that offense will be
       obtained through the interception; c. Normal investigative procedures have
       been tried and have failed or reasonably appear to be unlikely to succeed if
       tried or to be too dangerous; and d. There is probable cause for belief that
       the facilities from which or the place where the wire, oral or electronic
       communications are to be intercepted are being used or are about to be used
       in connection with the commission of the offense or are leased to, listed in
       the name of, or commonly used by an individual engaged in criminal
       activity described.33

       To establish probable cause, the Superior Court in issuing the wiretap warrant only

needed to find that the State had presented facts which, under the totality of the

circumstances, suggested there was a fair probability that Brooks had committed, or was

about to commit, a crime.34 As the Superior Court noted in denying Brown‟s motion to

suppress the wiretap evidence in this case, “[t]he determination of probable cause by the

issuing magistrate is entitled to great deference by a reviewing court.”35

       The Superior Court authorized the wiretap on Brooks‟ phone number on May 25,

2012, after it reviewed the State‟s Affidavit in Support of Application for Interception of


32
   Opening Br. at 13.
33
   11 Del. C. § 2407(c)(1).
34
   State v. Maxwell, 624 A.2d 926, 930 (Del. 1993).
35
   State v. Brown, 2013 WL 4051050, at *2 (Del. Super. July 30, 2013) (citing State v. Perry, 599
A.2d 759, 765 (Del. Super. 1990)); see also Jensen v. State, 482 A.2d 105, 111 (Del. 1984).
                                               12
Wire Communications. The Superior Court in Brown‟s case was within its discretion to

find that the State‟s Affidavit provided a sufficient factual basis to determine that there

was probable cause to authorize the wiretap. The State‟s Affidavit, a detailed 84 page

document, stated that Brooks obtained a new pre-paid cell phone every forty-five days in

an effort to avoid monitoring by the police. The State‟s Affidavit also explained that

Brooks used a pattern to distribute the new number to his network: Brooks would call his

contacts from the old phone number, tell them to answer the next call, and then call again

from the new number minutes later. This pattern helped the police to identify Brooks‟

new phone numbers throughout the investigation, including the one he was using on the

day that Brown was arrested. The State‟s Affidavit thus provided a sufficient factual

basis for the magistrate to find probable cause to believe that Brooks was using a

particular phone number, and that wiretapping that number would yield evidence of drug

dealing. Because the police had probable cause to obtain the wiretap on Brooks‟ phone,

the evidence that was obtained from his calls—including the drug deal he arranged with

the unknown man later identified as Brown—was admissible. As a result, the Superior

Court did not abuse its discretion in denying Brown‟s motion to suppress the evidence of

the calls arranging the drug deal.

       Brown also claims that the Superior Court abused its discretion by admitting the

evidence seized from him after his arrest. He argues that the police did not have probable

cause to arrest him at the time Sergeant Skinner stopped Brown‟s vehicle, and all of the




                                             13
evidence obtained as a result “were the fruits of the illegal arrest.”36 Brown emphasizes

that the police did not actually see him take part in a drug transaction, nor did the police

recognize him as a known suspect involved in Brooks‟ drug syndicate. Brown asserts

that it was premature for the police to assume he was the unknown caller, when it could

have been Price, the man who left Brooks‟ house before Brown arrived.

       But, as this Court has observed, “[a] finding of probable cause does not require the

police to uncover information sufficient to prove a suspect‟s guilt beyond a reasonable

doubt or even to prove that guilt is more likely than not.”37 To establish probable cause,

the police are only required to present facts suggesting that a “fair probability exists that

the defendant has committed a crime.”38 “The possibility that there may be a

hypothetically innocent explanation for each of several facts revealed during the course

of an investigation does not preclude a determination that probable cause exists for an

arrest.”39 Probable cause is determined by the totality of the circumstances, as viewed by

a reasonable police officer given her training and experience.40 “To determine whether

an officer had probable cause to arrest an individual, we examine the events leading up to

the arrest, and then decide „whether these historical facts, viewed from the standpoint of

an objectively reasonable police officer, amount to‟ probable cause.”41



36
   Opening Br. at 11.
37
   Maulo v. State, 27 A.3d 551 (Del. 2011) (quoting State v. Maxwell, 624 A.2d 926, 930 (Del.
1993)).
38
   Jarvis v. State, 600 A.2d 38, 42-43 (Del. 1991).
39
   Maxwell, 624 A.2d at 930.
40
   Miller v. State, 4 A.3d 371, 373-74 (Del. 2010).
41
   Stafford v. State, 59 A.3d 1223, 1229 (Del. 2012) (quoting Maryland v. Pringle, 540 U.S. 366,
371 (2003)).
                                              14
       In this case, the Superior Court found that “[b]ased on the totality of the

circumstances, . . . a fair probability existed that Brown purchased cocaine and crack

cocaine at Brooks‟ house, and that when he departed probable cause existed to believe he

was then in possession of the drugs just purchased.”42

       The Superior Court was within its discretion to find that Sergeant Skinner had

probable cause to arrest Brown. Based on the events leading up to Brown‟s arrest, an

objectively reasonable officer who had listened to Brooks and the unknown man arrange

a drug deal could have believed that Brown was the unknown man, that he purchased

drugs as planned during the telephone calls, and that he still possessed those drugs at the

time he was stopped. Contrary to Brown‟s argument, it was reasonable for the police to

infer that the unknown man captured on the wiretap was Brown, both because Brown

arrived at Brooks‟ house close to the time that the drugs were scheduled to be picked up

and because the police had ruled out Price, who was not “unknown” to them.43

Moreover, given the content of the discussion captured on the wiretap, it was reasonable

for the police to infer that Brown and Brooks—who the police knew to be a cocaine

dealer—had engaged in a drug deal when they were out of the camera‟s view, and that


42
  State v. Brown, 2013 WL 4051046, at *2 (Del. Super. July 30, 2013).
43
  See App. to Answering Br. at 128 (Tr. Of Wiretap Motions, Test. of Skinner) (“The reason
why we focused in on [Brown‟s] green van specifically is because no one else arrived there that
we didn‟t already know. And what I mean by that is John Price had arrived, and we already
knew what phone John Price was using and the vehicle he was driving and who he was, so when
the green van arrived, we put two and two together and figured that was the person requesting
the cocaine that I had heard on the telephone calls leading up to my going out to that area with
the patrol vehicle.”). Indeed, Price was profiled as a known member of Brooks‟ syndicate in the
Affidavit in Support of Application for Interception of Wire Communications that the State
submitted to obtain the wiretap which later captured Brown‟s telephone calls. App. to
Answering Br. at 18 (State‟s Affidavit).
                                               15
Brown was still in possession of those drugs minutes later, when Sergeant Skinner

stopped his vehicle.44 Because the police had probable cause to arrest Brown, there was

no reason to exclude the fruit of the search of his body incident to that arrest, i.e., the

drugs that Sergeant Skinner found.45

       Brown‟s last claim on direct appeal is more sensitive, given the alleged

improprieties by OCME employees that came to light after his trial. As originally

argued, Brown claimed that the State did not properly establish the chain of custody of

the cocaine evidence. He contended that the discrepancies between the amounts and

types of cocaine reported on the evidence bag labels and in the Medical Examiner‟s

report showed that the drug evidence had been misidentified or tampered with. Brown

objected to the admission of the cocaine evidence at trial, which the Superior Court

overruled.46 We review trial court rulings on the admissibility of evidence for abuse of

discretion.47

       “The proper standard for the admission of items into evidence over a chain of

custody objection is whether there is a reasonable probability that the evidence offered is

what the proponent says it is—that is, that the evidence has not been misidentified and no

44
   Cf. State v. Lum, 1978 WL 187981 (Del. Super. Ct. Nov. 22, 1978) (holding that the police had
probable cause to arrest defendants when the parties planned a drug transaction in wiretapped
telephone conversations, and then met as planned in the conversations).
45
   See Stafford v. State, 59 A.3d 1223, 1231 (Del. 2012) (citing United States v. Robinson, 414
U.S. 218, 224 (1973)).
46
   Opening Br., Ex. E (Trial Court Bench Ruling on Admission of Cocaine, Sept. 10, 2013) (“I
don‟t think there‟s any reasonable possibility that the drugs got mixed up with some other drugs
that were not on his person into those envelopes and from there the chain goes on without
trouble. I think the objection goes to the weight of the evidence. So your objection is overruled.
The item will be admitted.”).
47
   McNair v. State, 990 A.2d 398, 401 (Del. 2010); Stickel v. State, 975 A.2d 780, 782 (Del.
2009).
                                               16
tampering or adulteration has occurred.”48 Brown‟s central argument is that there were

too many discrepancies between the Police Evidence report and the Medical Examiner

report, including in the number of bags, the type (powder vs. crack), and the weight of the

cocaine, to support a “reasonable probability” that there had been no tampering or

misidentification of the evidence.

       Given what the State itself has concluded regarding the improprieties by OCME

employees, it is perhaps conceivable that the discrepancy between the amount of cocaine

Brown claims to have been arrested with and the amount reported by OCME might have

been the result of someone in the chain of custody taking some of the cocaine for their

personal use, or errors consistent with a larger pattern of sloppiness.49 But at the time of

trial, before there was any awareness of problems in evidence-handling by OCME

employees, the Superior Court was entitled to credit the forensic examiner‟s testimony.

If true, her explanation of the differences between the amounts reported and the type of

cocaine observed in each bag satisfied a reasonable probability that the evidence had not

been misidentified. The amount of drugs seized from Brown after his arrest and the

amount of drugs logged into evidence by OCME roughly matched, and both amounts


48
   Word v. State, 2001 WL 762854, *3 (Del. June 19, 2001); see also McNally v. State, 980 A.2d
364, 371 (Del. 2009) (“In chain of custody issues, the party attempting to admit the evidence
must eliminate possibilities of misidentification and adulteration, „not absolutely, but as a matter
of reasonable probability.‟”) (quoting Tricoche v. State, 525 A.2d 151, 153 (Del. 1987)).
49
   Of course, it could also be that the difference in weights was so minor that there was no
material discrepancy at all, consistent with the Superior Court‟s finding. There are a myriad of
“mights” in the world. In this case, Brown claims to have had at least 28 grams of cocaine,
which he purchased from his upstream supplier and then intended to resell to a downstream
purchaser. Shocking as it may seem, the possibility exists that Brown‟s supplier did not give him
the full amount that he paid for, but an amount still indisputably above the statutorily relevant 20
grams.
                                                17
totaled more than 20 grams of cocaine, the minimum requirement for a Tier 4 offense.

The trial judge was also able to observe the evidence personally, and have the forensic

examiner explain which bags of cocaine she had identified as powder or “chunky.”50

       Moreover, the State presented all the witnesses necessary to establish the chain of

custody, including the seizing officer (Sergeant Skinner), the packaging officers

(Sergeant Lloyd and Master Corporal Lavere), and the forensic chemist (Phillips).51 As

the Superior Court correctly noted, when there is no clear abuse of discretion, any breaks

in the chain of custody go only to the weight, not the admissibility, of the evidence. 52

Because there was a reasonable probability at the time of Brown‟s trial that the evidence

had not been misidentified or adulterated, we find that the Superior Court did not abuse

its discretion in admitting the cocaine seized from Brown.

                 E.      BROWN’S CLAIMS FOLLOWING REMAND

       Even with the new facts in the record following the revelations of alleged

misconduct by certain OCME employees, Brown‟s conviction should not be reversed.

Accordingly, we conclude that the Superior Court did not abuse its discretion in denying




50
   App. to Answering Br. at 176 (Tr. of Arguments, Sept. 10, 2013).
51
   See 10 Del. C. § 4331 (defining the “chain of custody” as the seizing officer, packaging
officer, and forensic chemist); see also Milligan v. State, 2015 WL 3622880, at *7 (Del. June 10,
2015) (quoting Demby v. State, 695 A.2d 1127, 1131 (Del. 1997)) (“We have never interpreted
[Delaware‟s chain of custody law] as requiring the State to produce evidence as to every link in
the chain of custody. Rather, the State must simply demonstrate an orderly process from which
the trier of fact can conclude that it is improbable that the original item has been tampered with
or exchanged.”).
52
   Word v. State, 2001 WL 762854, *3 (Del. June 19, 2001) (citing Baker v. State, 1988 WL
137190 (Nov. 21, 1988)).
                                               18
Brown‟s motion for a new trial on remand.53 As the Superior Court correctly noted, a

new trial is warranted if:

       “(1) The new evidence is of such a nature that it would have probably changed the

result if presented to the jury;

       (2) The evidence was newly discovered; and

       (3) The evidence must not be merely cumulative or impeaching.”54

       In Brown‟s case, the Superior Court determined that the evidence of alleged

misconduct by OCME employees was newly discovered and not merely cumulative or

impeaching, which the State does not dispute. But the Superior Court found that “in the

overall analysis, the Defendant‟s new trial motion must be denied because the evidence

was not of a nature that it would have probably changed the result.”55

       In his supplemental briefing, Brown contends that the Superior Court abused its

discretion in denying his motion for a new trial. Brown argues that without the drug

evidence, he “arguably” would have been acquitted.56 He also points out that all charges

were dropped against Jermaine Dollard, who was also convicted for his role in the

Brooks‟ drug syndicate, after re-testing revealed that the substance seized from him was

not in fact cocaine.57




53
   Hicks v. State, 913 A.2d 1189, 1193 (Del. 2006) (“This Court reviews the denial of a motion
for new trial for abuse of discretion.”).
54
   State v. Brown, ID #1205025968A, at 2-3 (Del. Super. Dec. 18, 2014) (letter order) (quoting
Hicks, 913 A.2d at 1194).
55
   Id. at 3.
56
   Supp. Opening Br. at 9.
57
   Id. (citing State v. Dollard, No. 1206010837 (Del. Super.)).
                                              19
       But Brown‟s case is distinguishable from State v. Dollard, where the defendant

maintained throughout trial and on appeal that the substance seized from him was not

cocaine.58 When the State retested that substance following the revelations of OCME

misconduct, it turned out not to be cocaine or any other drug. The State then dropped all

charges against him.59

       By contrast, Brown does not contest that the substance seized from him was

cocaine; indeed, he requested that a letter he wrote to his attorney be placed on this

Court‟s docket, in which he states, “I never contested that it was not cocaine. I am

contesting the fact that drugs has come up missing.”60 In that letter, Brown asserts that he

was arrested with over 29 grams of cocaine, more than any of the amounts suggested by

Sergeant Skinner, Sergeant Lloyd, Master Corporal Lavere, OCME, or NMS. Even if

that was true, all of the tests, and Brown‟s own statements, demonstrate that Brown had

more than 20 grams of cocaine when he was arrested. Thus, by any count, Brown

committed a Tier 4 offense, the level for which Brown was charged and convicted.61 The

slight discrepancy among the measurements reported by the police (21.2 grams), OCME

(23.23 grams), and NMS (22.05 grams) would not have changed the result, and there was

thus no prejudice to Brown.




58
   See App. to Supp. Opening Br. at 22 (Tr. of Oral Arg‟t, State v. Dollard, No. 1206010837
(Del. Super. Dec. 16, 2014)).
59
   See Supp. Opening Br., Ex. E (order vacating Dollard‟s conviction, Jan. 14, 2015).
60
   Brown v. State, No. 603, 2013, Filing ID 56928630 (letter dated March 12, 2015).
61
   See 16 Del. C. §4751C(2)(a) (defining 20 grams or more of cocaine or of any mixture
containing cocaine as a Tier 4 Controlled Substances Quantity).
                                              20
         The alleged lack of professionalism in evidence-handling by employees of OCME,

which has been the subject of investigations by the Delaware State Police and Delaware

Department of Justice, among others, is deeply troubling, and we in no way want to

suggest that this Court does not take the problem seriously. But as we observed in State

v. Ira Brown, “there is no evidence that the OCME staff „planted‟ evidence to wrongly

obtain convictions. Rather, the employees who stole the evidence did so because it in

fact consisted of illegal narcotics that they could resell or take for personal use.”62

         The revelation that OCME employees may have stolen drugs for their own use or

were sloppy in handling evidence in certain cases should not result in the issuance of

automatic get-out-of-jail-free cards to defendants like Anzara Brown. Instead, we must

focus on the specific facts of each case, in light of the appropriate standard of review, to

determine if a defendant was unjustly convicted. No unjust conviction resulted here,

because the Superior Court correctly held that there was no rational probability that

Brown was convicted on false premises. The Superior Court properly found that the

other evidence of Brown‟s guilt—including his own admission that he possessed and

intended to sell over 20 grams of cocaine—was overwhelming. Thus, the Superior Court

was within its discretion to deny Brown‟s motion for a new trial, and we affirm the

Superior Court‟s judgment.




62
     Brown v. State, 108 A.3d 1201, 1205 (Del. 2015).
                                                21
