SUPERIGR COURT
of the
STATE OF DELAWARE

jeffre j Clarl< Kent County Courthouse
]u ge 38 The Green

Dover, DE 19901
Telephone (302)735/2111

October 1, 2018

Gregory R. Babowal, Esquire Lloyd A. Schmid, Jr., Esquire
Lisa Whitelock, Esquire Richard F. Matoni, III, Esquire
Department of Justice Off1ce of Defense Services
102 W. Water Street 45 The Green

Dover, DE 19901 Dover, DE 19901

RE: State v. Larrjy J. Pierce
ID No. 1601006859

Submitted: September 26, 2018
Decided: October l, 2018

Counsel:

Defendant Larry J. Pierce (hereinal°cer “Mr. Pierce”) is charged With Murder
First Degree for allegedly murdering Josue Barclay on April 18, 2009. This Order
provides the Court’s decision regarding Mr. Pierce’s motion in limine to exclude
evidence of a 9mm casing (hereinal°cer the “subject casing”) that the Dover Police
allegedly recovered from the scene of the homicide.

Mr. Pierce moves to exclude this evidence as Well as the testimony of its
firearms identification expert, Stephen Deady (hereinafter “Mr. Deady”). Based on
his February 26, 2018, testing, Mr. Deady opines that a firearm possessed at some

point by Mr. Pierce fired the round producing the subject casing. For the reasons
that follow, Mr. Pierce’s motion to exclude the evidence based on chain of custody
concerns is DENIED.

Procedural and Factual Background

Despite the fact that this trial is scheduled as a bench trial, the Court held a
hearing in advance of trial pursuant to DelaWare Rule of Evidence 104(a)
(hereinafcer “Rule 104(a)”) to determine the subject casing’s admissibilityl A
primary issue generating this chain of custody dispute is the nine-year gap between
the homicide and the trial. A second, and more vigorously argued issue, involves
allegations that the State’s first firearms examiner, Carl Rone (hereinafter “Mr.
Rone”), Was recently charged With falsifying business records related to his
employment. He is currently awaiting trial on those charges. Mr. Rone single-
handedly controlled the subject casing at issue While testing it in April 2009. Because
he relies upon business records to support his testimony regarding chain of custody,
Mr. Pierce asserts that the State cannot meet its chain of custody burden.

Mr. Pierce’s case is three years and three months post-indictment When the
allegations involving Mr. Rone arose, Mr. Pierce Was on the eve of trial. After Mr.
Rone’s allegations became public, the State requested a continuance to secure
another firearms expert. Thereafter, Mr. Pierce filed a motion in limine contesting
the State’s ability to establish the chain of custody. At the request of both the State

and Mr. Pierce’s attorneys, but over the objection of Mr. Pierce himself,2 the Court

 

1 Notwithstanding the fact that Mr. Pierce Waived his right to a jury trial, the Court elected to
hold a 104(a) hearing because of the significant amount of evidence needed to prove the chain of
custody for the subject casing in this case. The standard and the process for a 104(a) is the same
in both a jury and a bench trial. See 21A Charles Alan Wright & Arthur R. Miller, Fea'eral
Practice and Procedure § 5053.4 (2d ed. 1987) (recognizing its application in the bench trial
context).

2 Mr. Pierce refused to Waive his speedy trial rights on May 17, 2018. Before that point, he had
consistently Waived his rights and had also requested multiple trial continuances. Because Mr.

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again continued the trial until October 9, 2018. The Court rescheduled the trial for
that date because it was to follow Mr. Rone’s trial. In the interim, however, the
Court has continued Mr. Rone’s trial until after October 9, 2018.

At an office conference in August 2018, both parties and the Court discussed
the f`act that Mr. Rone’s trial would not conclude before Mr. Pierce’s trial. As a
result, the Court scheduled a pre-trial hearing to resolve Mr. Pierce’s motion in
limine. The Court scheduled the hearing in advance of trial because Mr. Pierce
raised significant issues regarding the effect of Mr. Rone’s alleged conduct on the
State’s ability to establish the chain of custody of the subject casing. In addition, as
the Court noted in an office conference, the State had not articulated, either through
its written responses or otherwise, what evidence it had available to establish the
chain of custody of the subject casing.

After Mr. Rone’s separation f`rom State employment in January 2018, the
State secured Mr. Deady’s opinion. Given Mr. Rone’s issues, the State does not
intend to offer his opinion at trial. Accordingly, Mr. Rone’s testimony is only
relevant for chain of custody purposes because he alone received, handled, and tested
the evidence in 2009, shortly after the homicide.

The Court scheduled a stand-alone evidentiary hearing after recognizing that:
(1) the State has charged Mr. Rone with falsification of business records; (2) the
evidence logs and reports prepared by Mr. Rone and used to establish the chain of
custody are also business records; and (3) Mr. Pierce has the right to both voir dire
State chain of custody witnesses with questions regarding Mr. Rone’s alleged
conduct, and to present extrinsic evidence in a Rule 104(a) chain of custody hearing.
All parties and the Court initially operated under the assumption that Mr. Rone

would not testify. That changed, however, when Mr. Pierce very recently notified

 

Pierce asserted his rights as of May 17, 2018, and still does, the Court denied his counsel’s
request on his behalf to continue the trial until after the final disposition of Mr. Rone’s case.

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the Court that the State would present Mr. Rone’s testimony at the hearing. On the
first day of the hearing, the State provided Mr. Rone testimonial immunity and then
presented his testimony.

Over two days, the Court heard testimony from several State witnesses,
including Mr. Rone. The record before the Court includes: the testimony and
exhibits offered at the chain of custody hearing; Mr. Rone’s prior sworn testimony
and exhibits offered at a Daubert hearing on January l2, 2018; and Mr. Deady’s
sworn testimony and the exhibits offered at his Dauberi hearing on April 25, 2018.

Mr. Pierce’s Arguments

At the conclusion of the Rule 104(a) hearing, Mr. Pierce argued that the State
failed to meet its obligations regarding chain of custody because of the nature of the
item at issue, and because the State relied on the professional integrity of Mr. Rone
to meet its burden. Mr. Deady examined a 9mm casing recovered from the homicide
scene that was in Mr. Rone’s sole possession for a time. At the hearing, Mr. Rone
testified that he normally test fired four like caliber rounds and compared their
casings to a subject casing. When performing his comparative analysis, all four of
the test casings would be kept on one side of the testing table while the subject casing
remained on the other side of the testing table at all times. After firing the test rounds,
in Mr. Pierce’s case, Mr. Rone compared the test casings to the subject casing under
a microscope, as was his regular practice, and offered his opinion at a Daubert
hearing that the test casings and the subject casing were fired from the same firearm
allegedly possessed by Mr. Pierce.

Given this practice, Mr. Pierce argues that there was a significant opportunity
for misidentification or commingling of the subject round with a test round. On
balance, Mr. Pierce argues that Mr. Rone could have commingled the rounds by
either inadvertently or advertently switching a test round for the subject round. If`

this were to happen, Mr. Deady’s subsequent analysis nine years later would in fact
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be comparing an old test round to a new test round, and would thus mistakenly link
the firearm to the scene of the homicide.

With regard to broader chain of custody concems, Mr. Pierce also argues that
there is no evidence regarding how Mr. Rone handled the evidence during the time
of his April 2009 examination. Likewise, he argues there is no such evidence
regarding Mr. Deady’s 2018 testing. This lack of evidence, he argues, creates
significant breaks in the chain of custody. He also argues that a discrepancy between
the Dover Police Department’s computer logged evidence entries, and the envelope
housing the evidence, demonstrate breaks in the chain of custody.

Finally, Mr. Pierce acknowledges that Delaware law provides that the State’s
burden regarding chain of custody is lenient and that breaks in that chain generally
go to the weight the trier of fact must give the evidence, rather than its admissibility.
Mr. Pierce argues, however, that this is an extraordinary case as recognized by the
Delaware Supreme Court’s recent Superior Court Criminal Rule 61 decision in
Fowler v. State.3 Given the significant concerns raised regarding Mr. Rone’s
credibility, and the obvious fact that he is a critical link in the chain of custody, Mr.

Pierce urges the Court to exclude the evidence from trial.

Standard
There are two common ways to establish the chain of custody, First, the
proponent can establish that the evidence was in the exclusive possession of
identified individuals from the time first obtained until the time examined by the
expert (in this case, Mr. Deady).4 Second, the proponent can establish that the

evidence was packaged in a way that eliminated the possibility of tampering or

 

3 Fowler v. State, 2018 WL 4057249, at *9 (Del. Aug.27, 2018)
4 Thomas A. Mauet & Warren D. Wolfson, Trial Evidence, 311 (Wolters Kluwer 5th ed. 2012).

5

alternation.5 lt also follows that a combination of these two methods can properly
establish the chain of custody,

In the absence of a witness visually identifying an item as the item involved
in the crime, the State “may establish a chain of custody which indirectly establishes
the identity and the integrity of the evidence by tracing its continuous whereabouts.”6
The subject casing does not have unique characteristics that would distinguish it
from any other 9mm casing from the same manufacturer. With regard to evidence
such as this, the chain of custody process is an appropriate method for authentication
pursuant to Delaware Rule of Evidence 901.7 The burden is on the State to establish
the chain of custody. In doing so, the burden has been described as a lenient one.8
Namely, the State is “required to eliminate the possibilities of misidentification and
adulteration, not absolutely, but as a matter of reasonable probability.”9

ln the context of Rule 104(a) hearing to determine admissibility, the Court
must, by a preponderance of the evidence, determine if the proponent
circumstantially demonstrates that the evidence was not altered, contaminated, or
substituted between the time it was first recovered and the time it was tested.10 This
issue is a preliminary question where the Court is not bound by the rules of
evidence.ll If the State meets this standard, then any breaks in the chain of custody

or other impeaching factors go to the weight to be assigned the evidence by the trier

 

5 Id. at 312.

6 Guy v. Sraze, 913 A.2d 558, 564 (Dei. 2006).

7 S¢aze v. lrwin, 2014 wL 6734821, at *10 (Dei_ super. Nov. 17, 2014), ade lrwin v. Sm¢e, 132
A.3d 751 (Tabie) (Dei. Feb. 2, 2016).

8 Mills v. Szaie, 131 A.3d 806 (Tabie), 2016 wL 152975, at *1 (Dei. Jan. 8, 2016).

9 Whiif¢eld v. S¢aie, 524 A.2d 13, 16 (Dei. 1987).

10 D.R.E. 104(a).

11 Id.

of fact.12 Ultimately, the proponent must establish by a preponderance of the
evidence that the item is what he or she claims.13
The Court’s Findings Regarding Admissibility

The Court finds that the State has met its burden of showing more likely than
not that Mr. Deady compared a 9mm casing found from within ten feet of the alleged
victim’s body on August 18, 2009, to the casing from a test round he fired on
February 26, 2018. Thus, the Court does not find that Mr. Rone advertently or
inadvertently comingled a test casing with the subject casing when he handled the
subject casing in 2009. In so finding, the Court has considered the documents Mr.
Pierce submitted, and also Mr. Rone’s testimony.

For purposes of this hearing only,14 the Court finds more likely than not that
Mr. Rone falsified time records and received pay from the State of Delaware as a
result of inaccurate time verifications in 2016 and 2017. The Court also finds by a
preponderance of the evidence that he worked out of State for the New York State
Police and also at a Washington D.C. laboratory on numerous days that he also
collected pay from the State of Delaware.

The Court has also considered Defense Exhibit for ldentification “D.”lS That
document, produced by the State in discovery, lists times worked by various
Delaware State Police Homicide Unit employees during April 2009. Mr. Rone

worked in that unit during 2009 when he performed comparative testing with the

 

12 Demby v. Siaze, 945 A2d 593 (Tabie), 2008 wL 534273, at *2. (Dei. Feb. 28, 2008).

13 D.R.E. 901(a).

14 At this hearing, Mr. Rone was not afforded the opportunity to present a defense. Nor did the
State seek to rehabilitate him after Mr. Pierce’s cross-examination. Accordingly, this finding is
based upon the lesser evidentiary standard required in a Rule 104(a) hearing and applies only to
the Court’s chain of custody finding in Mr. Pierce’s case, It will carry no weight in Mr. Rone’s
pending trial.

15 This document was not entered into evidence for purposes of the hearing by the Defendant.
Nevertheless, the Court has considered it as such for purposes of this hearing under the relaxed
evidentiary standards appropriate in a Rule 104(a) hearing,

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subject casing. As a business record of the State, it constitutes an admission that Mr.
Rone was in fact not working during the entire week that he was to have tested the
subject casing.

As the finder of fact in this preliminary proceeding, however, the Court finds
credible Mr. Rone’s testimony that (1) he performed his testing when his records
created during and after the testing of the firearm reflected he did, and that (2) his
process eliminated the risk of misidentification, commingling, or tampering to a
reasonable probability. In addition to evaluating Mr. Rone’s demeanor and the
consistency of his testimony, the Court also finds that other evidence of record
corroborates his testimony validating his link in the chain of custody. Specifically,
Mr. Rone’s testing documentation, introduced at his January 2018 Daubert hearing,
corroborates that he did in fact perform the testing, Furthermore, the Court finds
overlapping consistency between the Forensic Firearms Services Unit evidence
control sheets and the Dover Police Department’s evidence logs. The combination
of these corroborating consistencies, Mr. Rone’s testimony, and documents from
Mr. Rone’s April 2009 testing of the subject casing satisfies the Court that his
evidence handling did not create a break in the chain of custody.

The Court’s limited finding for purposes of this hearing regarding Mr. Rone’s
falsification of business records creates a significant issue that the Court has
carefully weighed. Mr. Pierce is correct in that payroll records, chain of custody
records, and testing records are all “business records.” In the Court’s overall
evaluation, however, the Court does not find the same motivation to be present when
submitting records seeking extra pay that was not earned, compared to submitting
allegedly false evidence logs and testing documentation when handling evidence.
There is significant dissimilarity between these two types of business records.
Likewise, the two types of duties at issue regarding Mr. Rone’s payroll submissions
versus his expert testing and evidence processes have significant differences. As a

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final matter in the Court’s evaluation, Mr. Rone’s false verifications in his payroll
records occurred in 2016 and 2017. In contrast, Mr. Rone’s relevant participation
as a link in the chain of custody for the subject casing was in 2009.

Finally, the Court has considered the Defense exhibit seeking to show Mr.
Rone was not present during the week he handled the evidence in April 2009. lt
does not change the Court’s findings. There is no evidence of record that Mr. Rone
provided information relevant to it or evidence regarding its accuracy. Although the
Court accepts the exhibit as an admission by a party-opponent, because it is
apparently the State’s record, it lacks context in the current matter.

Mr. Pierce strongly emphasizes the Fowler decision’s holding. When denying
the defense’s continuance request, the Court provided its reasoning for
distinguishing that case from the case at hand. Namely, Fowler involved a Superior
Court Criminal Rule 61 proceeding where Mr. Rone’s expert testimony was a
linchpin of the State’s case.16 Here, the State offers his testimony for only chain of
custody purposes. Moreover, the Court in this very different context, has
nevertheless considered and evaluated the concerns raised by the Delaware Supreme
Court in the Fowler decision. In contrast to the postconviction issue in Fowler, for
purposes of this chain of custody hearing, Mr. Pierce had full opportunity to
subpoena evidence regarding Mr. Rone’s conduct and to cross-examine Mr. Rone.
The Court has considered that evidence and Mr. Rone’s credibility in its decision.

With regard to the chain of custody concerns from 2009 through 2018, the
Court also finds that the State submitted sufficient chain of custody evidence
eliminating evidence of tampering, altering, or misidentification from the time of
initial identification through Mr. Deady’s testing of the subject casing. First, the

State provided evidence identifying the subject casing as the one recovered from the

 

16 Fowler, 2018 wL 4057249, at *9.

homicide scene. Namely, Dover Police personnel testified that they recovered it
within ten feet of the alleged victim’s body in April 2009. Furthermore, the State
Submitted evidence tracing the continuous whereabouts of the evidence from that
point until Mr. Deady tested the subject casing in 2018. An errant reference to
“DFS” on the Dover Police Department’s computerized evidence log and the
missing written reference to April 12, 2018, on the evidence envelope do not
establish a significant break in the chain of custody, In those instances, the Delaware
State Police evidence control sheets provide the mirror image of what happened with
regard to the errant entries. Those control sheets confirm from the laboratory ’s side
that the evidence was in fact transferred to the proper locations at the dates
represented, notwithstanding the Dover Police Department’s clerical errors.
Conclusion

In conclusion, Defendant Larry Pierce’s motion in limine is DENIED. The
State has met its preliminary burden of establishing an adequate chain of custody by
showing more likely than not that the subject casing analyzed by Mr. Deady was the
casing recovered from the homicide scene in 2009. Accordingly, evidence regarding
the subject casing, and evidence flowing from that casing, will be admissible at
trial.17 Given the significant issues raised by Mr. Pierce in this motion, this Order
should not be read as an opinion regarding what weight will be due this evidence at

trial which will begin as scheduled on October 9, 2018.18

 

17 The Court has already denied Mr. Pierce’s Daubert motion seeking to bar Mr. Deady’s
testimony. After that April 2018 decision, the only remaining issues regarding its admissibility
were the chain of custody concerns raised in the instant motion.

18 The parties are strongly encouraged to determine to what extent the evidence in this two-day
hearing can be included as evidence at trial, pursuant to stipulation. In the absence of a
stipulation, however, since the Court must assess its ultimate weight, both parties are hereby
placed on notice that notwithstanding the presentation of evidence at the Rule 104(a) hearing,
any evidence to be considered by the Court in the trial must be presented to the Court during the
course of the trial.

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IT IS SO ORDERED.

/s/ Jeffrey J Clark
Judge

JJC/dsc

ll

