                                   SUPERIOR COURT
                                        of the
                                 STATE OF DELAWARE
Jeffrey J Clark                                                         Kent County Courthouse
Judge                                                                         38 The Green
                                                                             Dover, DE 19901
                                                                         Telephone (302)735-2111

                                          December 9, 2016


   Lindsay Taylor, DAG                                  Andre Beauregard, Esq.
   Department of Justice                                Brown, Shiels & Beauregard, LLC
   102 West Water Street, Second Floor                  502 South State Street
   Dover, DE 19901                                      Dover, DE 19901

           Re:      State v. Thomas J. Gordon
                    Case#1603017179

   Counsel:

           Pursuant to an oral motion, Defendant Thomas Gordon (hereinafter “Mr.
   Gordon”) moved to compel production of an arrest and search checklist completed by
   Probation and Parole prior to his arrest on March 22, 2016. Mr. Gordon, a probationer,
   was arrested and charged with Possession of a Firearm and Firearm Ammunition by a
   Person Prohibited, Receiving a Stolen Firearm, and two counts of Offensive Touching
   of Law Enforcement Officers. He was arrested and his alleged effects searched after
   Probation and Parole Officer Porter (hereinafter “Officer Porter”) sought approval for
   his arrest and search pursuant to their guidelines.
           Mr. Gordon seeks production of the arrest/search checklist completed by Officer
   Porter pursuant to Brady v. Maryland.1 The State, after review of the checklist,


           1
               Brady v. Maryland, 373 U.S. 83 (1963).
represented that it contained no Brady material and accordingly nothing “material to
the preparation of the defendant’s defense.”2 Mr. Gordon responds that he believes
that material in the checklist is exculpatory for both (1) its evidentiary value and (2)
for impeachment value in light of Officer Porter’s testimony at the Preliminary Hearing.
      The standard for determining whether an item constitutes Brady material is if it
is favorable to the accused and “material either to guilt or to punishment.”3 Evidence
is material “if the fact it is offered to prove is ‘of consequence’ to the action.”4 The
scope of the State’s obligation under Brady includes mandated disclosure of material
that is exculpatory as substantive evidence or exculpatory by virtue of its impeachment
value.5 It is the State’s obligation to disclose such exculpatory material.
      Here, Mr. Gordon argues that the checklist is material both to the issues of guilt
versus innocense and separately for its impeachment value relevant to the credibility
of the chief investigating officer who was a Probation and Parole officer. Specifically,
he argues that whether or not Officer Porter followed proper procedure is relevant to
a matter of consequence. He proffers that the checklist will show that proper
procedures were not followed during the administrative arrest and search. Furthermore,
he argues that Officer Porter’s testimony at the Preliminary Hearing will be
contradicted by the checklist.
      The Deputy Attorney General prosecuting the case responded that (1) the State
does not intend to introduce the checklist in its case-in-chief, and further (2) after the


      2
          See Super. Ct. Crim. R. 16(a)(1)(D).
      3
          Lilly v. State, 649 A.2d 1055, 1057 (Del. 1994) (citations omitted).
      4
          Id. at 1060 (citation omitted).
      5
          Wright v. State, 91 A.3d 973, 987-988 (Del. 2014).

                                                 2
State’s review of the material, it determined that the material need not be disclosed
pursuant to Brady. Nevertheless, Mr. Gordon urged the Court to review the document.
Since the State did not object to Mr. Gordon’s request, the Court reviewed it in
camera.
      The Court reviewed the checklist in light of Mr. Gordon’s proffers. After this
review, the Court finds that there is no exculpatory information in the document that
mandates its disclosure pursuant to Brady v. Maryland. Furthermore, as requested by
Mr. Gordon, the Court separately reviewed the preliminary hearing transcript, including
the testimony of Officer Porter. The Court finds no information in the checklist
inconsistent with the testimony of Officer Porter that would make the material
appropriate for disclosure under Brady for impeachment purposes.
      On balance, since (1) the State does not intend to introduce the document as
evidence in its case-in-chief at trial, and (2) the document is not material to the
preparation of Mr. Gordon’s defense, the State is not mandated to disclose it pursuant
to Superior Court Criminal Rule 16(a) or pursuant to Brady v. Maryland’s mandate.
For these reasons, Defendant Thomas Gordon’s motion to compel production of Brady
material is DENIED. Since the State provided the document at issue for an in camera
review, the Court orders the document to be filed under seal, and the Prothonotary shall
docket it accordingly.
      IT IS SO ORDERED.


                                                      /s/Jeffrey J Clark
                                                          Judge




                                           3
