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

STATE OF DELAWARE,                       )
                                         )
      V.                                 )         ID No. 1401014417
                                         )
FRANK DAVENPORT,                         )
                                         )
              Defendant.                 )

           Upon Defendant’s Motion to Dismiss with Prejudice — DENIED

                           Submitted: December 17, 2014
                            Decided: December 31, 2014

      Defendant Frank Davenport is charged with murder in the first degree and

associated charges in connection with allegations arising from the death of Holly

Wilson on or about January 16, 2010. On January 21, 2014, the grand jury

returned an indictment against Defendant. The State is not pursuing the death

penalty. Trial is scheduled to begin on January 12, 2015, with jury selection

scheduled to begin on January 8, 2015.

      On November 19, 2014, this Court granted Defendant’s motion to compel,

over the State’s objection, and ordered the State to provide Defendant with a copy

of an internal Department of Justice memorandum that the State provided to its

expert witness. The State complied with the Order that day. Upon review of the

internal memorandum, Defendant filed this motion to dismiss on the grounds that

the State willfully suppressed Brady material. Defendant argues that the State “sat

on” exculpatory evidence for four years and, more specifically, withheld the
exculpatory evidence for the ten months that this case has been pending. The State

opposes Defendant’s motion to dismiss. It is the State’s position that that contents

of its internal memorandum were not willfully suppressed, and instead, were

protected attorney work product. Furthermore, the State asserts that it offered to

furnish its internal memorandum to the Court for in camera review, which is

“diametrically opposite to an effort to willfully suppress of conceal the information

contained within the memorandum.” 1

       Upon consideration of Defendant’s motion to dismiss with prejudice and the

State’s opposition thereto, the Court finds as follows:

    1. It is well-settled law that a Brady violation occurs where there is

       “suppression by the prosecution of evidence favorable to an accused . . .

       [that] violates due process where the evidence is material either to guilt or to

       punishment, irrespective of the good faith or bad faith of the prosecution.”2

    2. The Brady requirements promote the fair administration of justice and

       prevent the miscarriage of justice by requiring prosecutors to “turn over all

       favorable evidence to the accused” in order to “ensure a fair trial.” 3

    3. The Delaware Supreme Court has identified the three components of a

       Brady violation as “‘(1) evidence exists that is favorable to the accused,


1
  Resp. to Mot. to Dismiss.
2
  Brady v. Maryland, 373 U.S. 83, 87 (1963).
3
  Wright v. State, 91 A.3d 972, 987 (Del. 2014).
                                                   2
       because it is either exculpatory or impeaching; (2) that evidence is

       suppressed by the State; and (3) its suppression prejudices the defendant.’” 4

    4. Delayed disclosure of exculpatory evidence can result in a Brady violation if

       the evidence is not disclosed “within a sufficient amount of time for the

       defense to be able to use it.” 5 It is not a Brady violation if, after delayed

       disclosure, the defendant can effectively present the evidence at trial and if

       the delay does not hinder the defendant’s ability to investigate the evidence. 6

    5. It is the defendant’s burden to show that the nondisclosure, or delayed

       disclosure, of favorable evidence prejudiced the defendant by denying the

       opportunity to use the evidence effectively. 7

    6. Defendant argues that the State committed a Brady violation because the

       State knowingly suppressed exculpatory evidence contained in an internal

       memorandum. Specifically, Defendant refers to a portion of the internal

       memorandum in which the State recounts a dispute between two medical

       examiners regarding the victim’s cause of death.                   Within that same

       paragraph, the State concedes that the medical examiner’s dispute “would

       surely create Brady material for [the State].” 8 Accordingly, the Court finds



4
  Id. at 988 (citing Starling v. State, 882 A.2d 747, 756 (Del. 2005)).
5
  State v. Braden, 2009 WL 10244069, at *2 (Del. Super. May 21, 2009).
6
  Id.
7
  Wright, 91 A.3d at 988.
8
  State’s Internal Memo. at 4.
                                              3
   that the State’s delayed disclosure of information surrounding a dispute over

   the victim’s cause of death implicated Brady.

7. However, the Court finds that Defendant has not suffered prejudice because

   of the delayed disclosure. Defendant received the information sufficiently in

   advance of trial. Defendant sought relief from the State’s delay in the form

   of a motion for an extension of time to review the memorandum and retain a

   defense expert, which the Court granted. Defendant has not requested other

   relief, including a trial continuance, which could be considered.

8. For the aforementioned reasons, the State’s delay in disclosing Brady

   material has not prejudiced Defendant. Defendant has had sufficient time to

   use the information effectively and has the ability to request other relief,

   including continuance of trial, from this Court. Accordingly, dismissal of

   the indictment is inappropriate under these circumstances.

   NOW, THEREFORE, IT IS HEREBY ORDERED on this 31st day of

December 2014, Defendant Frank Davenport’s Motion to Dismiss with

Prejudice is hereby DENIED.

   IT IS SO ORDERED.
                                                          Andrea L. Rocanelli
                                   ____________________________________
                                   The Honorable Andrea L. Rocanelli




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