              IN THE SUPREME COURT OF THE STATE OF DELAWARE

SHANTELL NEWMAN                         §
                                        §      No. 271, 2019
      Defendant Below,                  §
      Appellant                         §      Court Below: Superior Court
                                        §      of the State of Delaware
             v.                         §
                                        §      Cr. Id No:    N1408018813
STATE OF DELAWARE                       §                    N1410004197
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                           Submitted: February 19, 2019
                           Decided:   March 3, 2020

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

                                       ORDER

      In this case, Shantell Newman, who was convicted of—among other things—

falsely reporting an incident, argues that the Superior Court erred by failing to give

the jury a Lolly-Deberry instruction. Newman’s request for the instruction was

prompted by the State’s inability to produce an audio recording of an incriminating

statement she made to the chief investigating officer.

      Although it does not appear as though Newman proffered a proposed

instruction to the Superior Court, she now discloses that, “[h]ad it been given, the

appropriate instruction would have stated . . . [that] [t]he failure of the State to [ ]

preserve [the audio recording] entitle[d] the defendant to an inference that [,] if such

evidence were available at trial[,] it would be exculpatory . . ., would not have
incriminated the defendant and would have tended to prove the defendant not

guilty.”1

       When it rejected Newman’s request for the instruction, the Superior Court

appropriately pointed to the reliability of the secondary evidence of what Newman

told the officer. This included the police report the officer wrote at the end of the

shift during which Newman admitted the subject offense and the arrest warrant

application he drafted and affirmed under oath the following day. We note that,

during his trial testimony, the officer was permitted to refer to these documents,

which included direct quotations from the recording. This secondary evidence

supported the trial court’s finding that the audio recording, had it been available,

would have been “inculpatory and not exculpatory.”2 For her part, Newman did not

provide any evidence to contradict the officer’s testimony that she had confessed to

him and had in fact made a false report. Under the circumstances, the Superior Court

did not err in refusing to give a Lolly-Deberry instruction.

       We therefore AFFIRM the Superior Court on the basis of its ruling in the

record.3




1
  Opening Br. at 15.
2
  Appendix to Opening Br. at A69.
3
  Id. at A68-70.
                                              2
IT IS SO ORDERED.

                    BY THE COURT:


                    /s/Gary F. Traynor
                    Justice




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