      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                    IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                      )
                                        )
                                        )     Crim. ID No. 1312014951
      v.                                )
                                        )     Supreme Court No. 147, 2015
                                        )
JEROME MADISON                          )


                               Submitted: July 7, 2015
                               Decided: July 21, 2015

            ORDER ON DEFENDANT’S MOTION TO COMPEL

      This 21st day of July, 2015, upon consideration of the Defendant’s Motion to

Compel (D.I. 72), the State’s response (D.I. 74), and the record in this matter, it

appears to the Court that:

      (1)    Defendant-Appellant Jerome Madison was convicted of eleven crimes

after a nonjury trial in this Court including, inter alia, first degree rape, attempted

rape, unlawful sexual contact, kidnapping and assault involving two different

victims. At trial, Madison was represented by counsel. At sentencing, Madison

was sentenced to a term that included forty-two years of imprisonment.

      (2)    His trial counsel filed Madison’s direct appeal to the Delaware

Supreme Court. The Office of Public Defender then substituted for trial counsel
but has since, at Madison’s urging, been discharged so that he may proceed pro

se. 1 His direct appeal remains pending before the Delaware Supreme Court with

Mr. Madison representing himself.2

       (3)    On July 7, 2015, Madison filed the instant “Motion to Compel/DNA

Results/Chain of Custody” asking that this Court compel the State to produce:

(a) the “chain of custody report concerning DNA samples taken from” the victims

and himself; and (b) “all scientific test results taken from” the victims and

himself.3     Presumably, this application is made pursuant to Superior Court

Criminal Rule 16(d)(3)(C), even though that is a rule governing pre-trial discovery

that requires both a showing of a party’s failure to comply with a proper Rule 16

discovery request and the filing of a timely motion after such failure.4

       (4)    The State has responded to Madison’s motion as follows: (1) during

the pendency of Madison’s direct appeal, this Court is without jurisdiction to

decide his motion; and (2) even if the Court could act on the motion, “DNA testing

was not requested nor performed because identity was not an issue in the case . . .

1
       Madison v. State, Del. Supr., No. 147, 2015, Valihura, J. (June 30, 2015).
2
       Id.
3
       Def. Mot. to Compel, at 8.
4
        Del. Super. Ct. Crim. R. 16(d)(3)(C) (“Motion to compel. -- If a party fails to comply
with a request the opposing party may move for an order compelling compliance with the
request. A motion to compel shall be filed within ten days after the time for response or at such
other time as ordered by the court.”).

                                              -2-
[b]oth Defendant and Defense counsel were made aware that DNA testing was not

requested prior to June of 2014.”5

       (5)     Does the filing of a direct appeal in a criminal case divest the Superior

Court of jurisdiction to consider a motion to compel discovery while the appeal is

pending? The general rule is that “the proper perfection of an appeal . . . divests

the trial court of its jurisdiction over the cause of action.” 6 There are exceptions to

the general rule.       Our Supreme Court has recognized limited circumstances,

involving “collateral or independent matters,” where a trial court might exercise

concurrent jurisdiction. 7 But it is the general rule that is most-oft applied in a

criminal case,8 and that should be followed here. Madison’s is not a request as to

a “collateral or independent matter.”

       (6)     Before the Delaware Supreme Court only “the original papers and

exhibits [ ] shall constitute the record on appeal.”9 There is no “discovery” during

the pendency of an appeal. And the parties are not free to expand or supplement

5
       State’s Ans. to Mot. to Compel, at 2.
6
       Radulski ex rel Taylor v. Delaware State Hosp., 541 A.2d 562, 567 (Del. 1988).
7
       Id.
8
        See Eller v. State, 531 A.2d 948, 951 (Del. 1987) (Superior Court was divested of
jurisdiction to rule on the motion for new trial when direct appeal was pending); Carter v. State,
2005 WL 1175938, at *1 (Del. May 16, 2005) (same for postconviction motion).

9
       Del. Supr. Ct. R. 9(a); Id. 9(b) (the record on appeal contains all of the original papers,
photographs and documentary exhibits in the court below, along with the prepared transcript).

                                               -3-
the record on appeal. 10 In turn, this Court has no jurisdiction to enter orders

designed to do so. If Madison prevails on appeal, any discovery matters would be

addressed by this Court before any potential re-trial. If he is unsuccessful on

appeal, expansion of the record and discovery matters can be addressed during any

postconviction proceedings.11

       NOW, THEREFORE, IT IS ORDERED that Madison’s Motion to

Compel is DISMISSED, without prejudice, as this Court can take no action on

that application; his pending direct appeal divested this Court of jurisdiction to

address the merits of such Motion.12

                                                    /s/ Paul R. Wallace
                                                    Paul R. Wallace, Judge
Original to Prothonotary

cc:    Elizabeth R. McFarlan, Esquire, Chief of Appeals
       Karin M. Volker, Esquire, Deputy Attorney General
       Mr. Jerome Madison, pro se



10
       See generally Delaware Appellate Handbook § 4.14, at 4-xviii (2d ed. 1996).
11
        See Super. Ct. Crim. R. 61(g) (providing that the Court “may direct that the record be
expanded by the parties by the inclusion of additional materials relevant to the determination of
the merits of the motion”); see also Dawson v. State, 673 A.2d 1186, 1197-98 (Del. 1996) (while
this Court’s Criminal Rule 61 makes no provision for additional discovery, the Court has found it
possesses “‘the inherent authority under Rule 61 in the exercise of its discretion to grant
particularized discovery for good cause shown’”—such discovery may be granted under a good
cause standard when an inmate demonstrates a “compelling reason for the[ ] [requested
material’s] discovery.”).
12
       Walker v. State, 2000 WL 1535299 (Del. Oct. 10, 2000).



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