                                                 SUPERIOR COURT
                                                      OF THE
                                                STATE OF DELAWARE

WILLIAM C. CARPENTER, JR.                                                 NEW CASTLE COUNTY COURTHOUSE
               JUDGE                                                      500 NORTH KING STREET, SUITE 10400
                                                                          WILMINGTON, DE 19801-3733
                                                                          TELEPHONE (302) 255-0670




                                                        February 1, 2016


Daniel Logan, Esquire
Department of Justice
820 N. French Street
Wilmington, DE 19801

Ross Flockerzie, Esquire
Public Defender’s Office
820 N. French Street
Wilmington, DE 19801

          RE:      State v. Dewayne McNair
                   ID No. 1212003086A

                         On Defendant’s Motion for New Trial - DENIED

Dear Counsel:

      The Court has reviewed the recent submissions from counsel in Mr.
McNair’s case in relation to his request for a new trial. In spite of the unfortunate
and inappropriate assertions of defense counsel that the trial was a “sham” and the
reasoning of this Court in State v. Irwin is “flawed,” the Court does not find the
circumstances surrounding Mr. McNair’s trial and the conduct of the Medical
Examiner’s lab justify a new trial in this matter.1 As such, Defendant’s Motion for
New Trial will be denied.



   1
       State v. Irwin , 2014 W L 6734 821 (D el. Super. Nov. 17, 2014).
       To begin with, it is important to recognize that the form motion filed in this
matter was like those filed in similarly situated drug cases where the trial occurred
before the Office of the Chief Medical Examiner (“OCME”) misconduct was
discovered but the defendant had not been sentenced when the investigation was
disclosed. These motions assert that the drug evidence lacks the requisite
scientific reliability for admission under Daubert and Rule 702 of the Delaware
Rules of Evidence. These arguments were considered in Irwin and were rejected
subject to the relevancy limitations established in that case. However, the Irwin
decision does make some significant findings that the Court believes are relevant
in the context of this Motion for New Trial.

       First, in this case, there is a minor deviation or discrepancy in weight
between what was submitted to the lab by the police and what was discovered
during drug testing. The preliminary weight of 7 grams, which field tested
positive for cocaine, is set forth in the affidavit of probable cause. The OCME
chemist weighed the material as 6.2 grams and confirmed it was cocaine. The
Court believes this is not a significant deviation and alone would not justify a new
trial. Because of this finding, the Court finds the bright line rule established in
Irwin could not have been met by Defendant if the case had gone to trial after the
Irwin decision was rendered. In discussing certain cases in which inquiry into the
OCME investigation would be relevant, the Court stated:

          Therefore, the Court has decided that if a case was sent to the OCME
          drug lab for testing, the defense will be free to question the State’s
          witnesses or to present evidence regarding the OCME investigation
          only if there is either evidence of tampering of the packaging
          submitted by the police or a discrepancy in weight, volume or
          contents from that described by the seizing officer. If evidence of
          tampering is not present and there is no discrepancy, the OCME
          investigation is not relevant under Delaware Rule of Evidence 402 or
          at least would be misleading and unfair under Rule 403. In such
          cases, therefore, evidence of the investigation should not be
          introduced.2

There is no evidence here to suggest that drug evidence envelopes were opened or
tampered with in any way and the arresting officer, the Defendant, and the chemist
all agree the substance was cocaine. While the Court agrees that many of the
individuals who may have come into contact with Mr. McNair’s evidence while at
   2
       Id. at *36.
the OCME have been the subject of much controversy, that by itself does not
mandate a new trial in every case where such contact was possible. From all
accounts, the evidence seized by the police was the same evidence tested by the
lab. As the Court has stated many times, the cases developed to date have not
reflected one where drugs were planted to incriminate a particular defendant. If
anything, the missing drugs from this lab would reflect just the opposite.

       What is also unique about this case is, that, unlike in most drug cases,
defense counsel advised the State he was unwilling to agree to the chain of
custody being established pursuant to 10 Del. C. § 4330. As such, there was
significant evidence and argument heard before the trial judge relating to chain of
custody. Any discrepancy in that chain was made clear to the jury, both through
cross-examination and closing arguments. The jury was aware that there was a
two day gap between the day the drugs were delivered to the lab by the police and
when they were first recorded in the OCME chain of custody system. Further, the
fact that the chemist who put the prepared vials into the testing machine was also
not listed was clearly presented to the jury. When considered in total, this is not a
case where significant breaks in the chains were unknown to the jury. It appears
these issues were fully explored and would have been available to the jury as they
assessed the credibility of the relevant witnesses and considered their verdict.

       Next, Defendant argues that, since trial, he learned of the administrative
discipline of the assigned chemist, Patricia Phillips, and that such conduct
warrants a new trial. In Defendant’s July 27, 2015 submission, he listed three
specific instances where Ms. Phillips had received corrective action reports.
While all three events are troublesome to the Court and reflect a degree of
sloppiness, which it finds unacceptable, there is nothing to suggest that the same
conduct occurred when Mr. McNair’s drugs were being tested. Obviously if the
State was aware of this conduct by Ms. Phillips it would have been required to
disclose it. However, the simple answer is that such administrative internal
discipline issues are not regularly a matter disclosed in criminal proceedings, and
since the problems at the OCME were not discovered until after this trial, there
was no heightened sensitivity to such issues that would invoke a Brady violation
or misconduct by the State that would warrant a different decision.
       While the Court has decided not to grant a new trial on the legal issues
presented, Defendant has also asked that, at a minimum, the drugs seized be
retested. The Court believes, that to the extent the drugs are still available and
have not been destroyed, such request is a reasonable one. In fairness to
Defendant, the Court will require that the drugs be tested by an independent lab
unassociated with the OCME. This would at least end any uncertainty that the
drugs seized and tested were actually cocaine as admitted by the Defendant at the
time of his arrest. The Court takes this unusual step because of the significant
sentence the Defendant is facing and because it is fair to stay that the individuals
who may have touched Mr. McNair’s drugs are not unfamiliar to the Court from
the numerous motions and hearings held as a result of the OCME investigation. If
the drugs, after retesting, are cocaine, the denial of the Motion for New Trial will
be final, and the case will be sent to Judge Medinilla for sentencing.

      IT IS SO ORDERED.


                                        /s/ William C. Carpenter, Jr.
                                       Judge William C. Carpenter, Jr.

WCCjr:twp

cc:   The Honorable Vivian Medinilla
      Prothonotary
