              IN THE SUPREME COURT OF THE STATE OF DELAWARE

DAVID L. ELDER,                          §
                                         §     No. 61, 2018
         Defendant Below,                §
         Appellant,                      §     Court Below: Superior Court
                                         §     of the State of Delaware
         v.                              §
                                         §
STATE OF DELAWARE,                       §     Cr. ID No. 1512017983
                                         §
         Plaintiff Below,                §
         Appellee.                       §

                             Submitted: November 28, 2018
                             Decided:   December 3, 2018

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                       ORDER

         This 3rd day of December 2018, it appears to the Court that:

         (1)     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.1 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



1
    Opening Br. at 5.
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,2 “that the missing evidence would have been

exculpatory.”3

       (2)     We 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.4

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.5 That

finding is supported by the record.6 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.


2
  Deberry v. State, 457 A.2d 744 (Del. 1983).
3
  Lolly v. State, 611 A.2d 956, 961 (Del. 1992).
4
  “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 197, 199 (Del.
1998)).
5
  App. to Answering Br. at B115–19 (Argument on Deberry Issue and Ruling).
6
  See id. at B31 (Trial Testimony of Detective Rowley) (“Q: Was there any time later that you
discovered that the home had security cameras? A: Not that evening. I do not recall a time that
evening that I was aware that there was security cameras, no. Q: Has it come to your attention
now that there was security cameras in the residence. A: Yes. Q: Are you aware that there was
a security camera within the kitchen. A: I was not aware of that until today.”); id. at B46–47
(Trial Testimony of Officer Schiazza) (“Q: Did you happen to notice when you were going down
this hallway right here? A: I don’t recall. I wasn’t focusing on a camera, if that’s what that is.
Q: Now looking at it, does that look to be what that is, a security camera right there? A: I can’t
tell. Q: But when you were at the house, you didn’t notice it, did you? A: I don’t recall. Q: How
long were you in the house? A: Probably an hour or so. Q: Were the lights on in the house? A:
They were. Q: Did you notice any other security cameras in the house? A: That wasn’t my focus
of that evening.”); id. at B53 (Trial Testimony of Trooper Harmon) (“Q: When you came to the
residence, did you happen to notice this red sign at the entry right here? A: I don’t remember it,
sir. It’s bene a while.”).

                                                2
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,7

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.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                           BY THE COURT:
                                           /s/ Leo E. Strine, Jr.
                                           Chief Justice




7
 Powell v. State, 49 A.3d 1090, 1101 (Del. 2012) (“[T]he duty to preserve exculpatory evidence
does not include a duty to seek out exculpatory evidence.”) (emphasis in original).

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