             IN THE SUPREME COURT OF THE STATE OF DELAWARE


CURTIS J. BROWN,                             §
                                             §       No. 59, 2017
       Defendant Below-                      §
       Appellant,                            §
                                             §       Court Below:
               v.                            §       Superior Court of the
                                             §       State of Delaware
STATE OF DELAWARE,                           §
                                             §       Cr. I.D. No. 1502004036 (N)
       Plaintiff Below-                      §
       Appellee.                             §


                              Submitted:     August 16, 2017
                              Decided:       August 17, 2017

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

                                           ORDER

       This 17th day of August 2017, the Court, having considered this matter on the briefs

of the parties, has concluded that the same should be affirmed on the basis of and for the

reasons assigned by the Superior Court in its Memorandum Opinion of January 9, 2017.1




1
  Appellant contends that he was entitled to an exculpatory presumption along the lines of Deberry
v. State, 457 A.2d 744 (Del. 1983), with respect to his performance on three field sobriety tests
(“FSTs”). He asserts that the FSTs were administered such that a video recording device in the
officer’s patrol car failed to capture footage of his lower extremities. The Superior Court did not
address this argument, holding only that Brown was not entitled to a Deberry instruction arising
from a malfunction of the officer’s microphone that caused the video to record without audio. See
Brown v. State, 2017 WL 89059, at *3 n.17 (Del. Super. Jan. 9, 2017). The Superior Court’s
reasoning in rejecting the audio claim applies equally to Appellant’s argument concerning the
administration of the FSTs outside the full view of the camera. The State preserved and disclosed
the video evidence in its possession, and Brown has not demonstrated that law enforcement has an
affirmative duty to video record all FST administrations. Accordingly, Appellant’s argument
concerning the video of his performance on the FSTs is without merit.
                                                 1
      NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court be, and the same hereby is, AFFIRMED.

                                      BY THE COURT:



                                      /s/ Karen L. Valihura
                                      Justice




                                        2
