IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

v. Case No. 1805019086

VERNELL WATTS,

Defendant.
Subrnitted: February 19, 2019
Decided: March 4, 2019

Upon Defendant ’s Motion to DismiSS/Motion in Limine:
DENIED

Cari Chapman, Esq., Matthew Keating, Esq., Deputy Attorneys General,
Department of Justice, Attorneys for the State.

Elliot Margules, Esq., Assistant Public Defender, Office of the Public Defender,
Attorney for Defendant.

Rennie, J.
MEMORANDUM OPINION
This 4th day of March, 2019, upon consideration of Defendant Vernell Watts’
(“Defendant”) Motion to Dismiss/Motion in Limine,l the State’s Response thereto,2

applicable decisional laW, and the entire record in this case, IT APPEARS THAT:

 

l Defendant’s Motion to Dismiss/Motion in Limine (“Mot.”) (D.I. 17).
2 The State’s Response to Defendant’s Motion to Dismiss/Motion in Limine (“Resp.”) (D.I. 21),

I. FACTUAL BACKGROUND

On May 28, 2018, the police arrived at 806 West Sth Street, Wilmington, DE,
in response to several 91 l calls in reference to a stabbing.3 Upon arrival, the police
found three victims actively bleeding from knife Wounds, one of Whom bled
profusely from a stab Wound in his neck.4 The victims told the police that Defendant
attacked the three with two kitchen knives.5 The police finally located Defendant on
the 800 block of North Adams Street.6 When found, Defendant Was Wearing jeans,
a black sneaker, a sock, and Was shirtless.7 Defendant told the police that he Was
asleep When “they came in and stabbed [him],” and that he Was the victim.8 The
police noticed that Defendant had a laceration to his right shoulder.9

Defendant Was examined by both New Castle County Emergency Medical
Services (“EMS”) and St. Francis Hospital EMS. They Wrote reports describing
Defendant’s laceration as “a l” superficial laceration to the right shoulder”10 and “a

minor l inch laceration above the collar bone With bleeding controlled,”ll

 

3 Resp. at l.

4 Id. at 1-2.

5 Id. at 2.

6 ld.

7 Ia'.

8 ld.

9 Ia’.

10 The State’s Response to Defendant’s Motion to Dismiss/Motion in Limine, Ex. A, New Castle
County EMS Prehospital Care Report (“Ex. A”). All the other exhibits to the State’s Response
Will hereinafter be referred to as “Ex. _.”

11 Ex. B.

respectively. The New Castle County EMS report stated that the laceration Was the
only injury found on Defendant, and Was Defendant’s only area of pain and only
complaint12

Defendant Was later transferred to Wilmington Hospital’s Emergency
Room,13 Where he Was examined by several doctors.14 The blood loss from the
laceration Was estimated to be less than 0.5 milliliter.15 The doctors also evaluated
general symptoms, head, eyes, ears, nose, throat, neck, lungs, cardiovascular,
abdomen, extremities, neurological, and skin, but found no issues.16 Defendant
denied “headache, chest or abdominal pain, [or] pain to the extremities.”17 A CT
scan Was conducted and showed no evidence of acute hemorrhage, hydrocephalus,
or herniation; nor did it show any acute transcortical infarct.18 Defendant Was
discharged from Wilmington Hospital but later readmitted after making suicidal

remarks to police during intake.19 Defendant Was reexamined by doctors during his

second hospital visit, but no issues Were found other than the laceration.20 Defendant

 

12 Ex. A.

13 Defendant contends that he should have been transferred to Christiana Hospital, the only facility
in New Castle County With a forensic team that treats adults. Mot. at 2. Defendant contends that,
due to the police’s insistence, he Was eventually transported to Wilmington Hospital, Which does
not have a forensic team. Id.

14 Resp. at 3.

15 Ex. D.

16 Id.

17 Ex. E.

18 Ex. F.

19 Ex. G.

20 Ex. H.

did not make any statements regarding trauma, injury, or pain relating to the
domestic incident that happened earlier.

Defendant’s trial is scheduled for March 12, 2019. On January 16, 2019, With
the Court’s leave, Defendant filed this Motion to Dismiss/Motion in Limine,
Defendant claims that, as a result of the police’s actions, he Was denied access to
certain favorable evidence Specifically, Defendant contends that he Was deprived
of the opportunities to (1) have his clothing, Which he Wore on the day of the
incident, preserved, photographed, and documented; (2) be examined “head to toe;”
and (3) have all injuries identified, described, and photo graphed.21 Defendant asserts
that the above-mentioned evidence is material to his self-defense claim, and he
therefore is entitled to have this case dismissed, or a jury instruction concerning the
significance of the missing evidence

II. STANDARD OF REVIEW

The Due Process Provisions of the Fourteenth Amendment of the United
States Constitution and the DelaWare Constitution, article I, section 7, require the
State to preserve evidence that Was once in their possession.22 This duty Was later

extended to alleged failures to gather evidence ab im`tio.23 When the defense alleges

 

21 Mot. at 2. Defendant claims that if he Was initially transported to Christiana Hospital, he could
have been examined by a forensic nurse, and the allegedly missing evidence could have been

preserved Id.
22 Deberry v. State, 457 A.Zd 744, 751-52 (Del. 1983).
23 Lolly v. State, 611 A.Zd 956, 960 (Del. 1992).

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missing evidence, the Court should conduct its analysis under the following

paradigm:

1) would the requested material, if extant in the possession of the State
at the time of the defense request, have been subject to disclosure under

Criminal Rule 16 or Braa’y [v. Maryland24]?

2) if so, did the government have a duty to preserve the material?

3) if there was a duty to preserve, was the duty breached, and what
consequences should flow from a breach?25

The third question, the relief following a breach of the duty to gather or preserve
evidence, is determined according to a separate three-part analysis that considers:
1) the degree of negligence or bad faith involved,

2) the importance of the missing evidence considering the probative
value and reliability of secondary or substitute evidence that remains

available, and
3) the sufficiency of the other evidence produced at the trial to sustain

the conviction.26
This three-part analysis draws a balance between the State’s conduct and the
prejudice to the defense.27 When the State does not act in bad faith or
negligence and the defendant is “not substantially prejudiced by the missing

evidence,” a missing evidence instruction is not necessary.28

 

24 Bmdy v. Maryland, 373 U.s. 83 (1963).

25 Deberry, at 750.
26 Bailey v. State, 521 A.2d 1069, 1091 (Del. 1987) (citing Deberry, at 752).

27 Deberry, at 752.
28 Lunnon v. State, 710 A.2d 197, 200-01 (Del. 1998).

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III. LEGAL ANALYSIS

Defendant’s first alleged missing evidence is his clothing. When found
by police, Defendant was wearing jeans, a sneaker, a sock, but no shirt. The
police have collected the sneaker and jeans, so the only missing item is the
sock. The first question is whether the sock would have been subject to
disclosure under Superior Court Criminal Rule 16 (“Rule 16”) or Brady. Rule
16 requires that, upon the defendant’s request, the State shall permit the
defendant to inspect or photograph tangible objects which are material to the
preparation of the defendant’s defense29 And it is well-known that Braa’y
requires that the State disclose favorable evidence to the defendant. Here,
besides the conclusory statement that the missing evidence “would have
substantiated Defendant’s self-defense claim,”30 Defendant fails to show why
the sock is material to his defense or would in any way exonerate him.
Therefore, the sock is not subject to disclosure

Defendant also claims that he was deprived of the opportunity to be
examined “head to toe.” This is simply not true Defendant spent several
hours in Wilmington Hospital, and was examined by at least four doctors, two

EMS units, and nursing staff. Two examinations of his head, eyes, ears, nose,

 

29 Super. Ct. Crim. R. l6(a)(l)(C).
30 Mot. at 4.

throat, neck, lungs, cardiovascular, abdomen, extremities, neurological, and
skin were conducted, as well as a CT scan. All the medical records pertaining
to those examinations have been provided to Defendant. Defendant now
contends that the State should have had him examined by a forensic nurse, but
cites no authority, and the Court has found none, that supports such a duty.
Defendant also fails to demonstrate how an examination by a forensic nurse
would make a difference in his case Therefore, since Defendant has already
been examined “head to toe” after the incident, the Court does not deem it as
missing evidence

Defendant next claims that the State should have had “all [his] injuries”
identified, described, and photographed. The only injury found by the
medical staff and documented in Defendant’s medical records is the
superficial laceration to his right shoulder. Defendant never complained about
any other injuries, and no such injures are mentioned in Defendant’s Motion.
Hence, the evidence at issue is the identity, description, and picture of the
shoulder laceration. Since the laceration was documented and described in
several reports, the only missing evidence here is a picture of that laceration.

The State concedes that the picture of Defendant’s laceration, if in its
possession, would be discoverable Thus, the next step is to determine

whether the State has a duty to preserve that evidence The Delaware Supreme

Court has declined to prescribe exact procedures for law enforcement
agencies to follow in order to preserve evidence, but has held that agencies
should create rules that are broad enough to encompass any evidence that
would be favorable to the defense.31 Assuming, arguendo, that the State has
a duty to take and preserve pictures of Defendant’s laceration and failure to
do it constitutes breach of that duty, the next step is to conduct the three-factor
analysis to determine the appropriate remedy for the breach. The Court agrees
with the State that Defendant is not entitled to dismissal or a missing evidence
instruction on this issue

Defendant claims that the police decided beforehand that Defendant
was a guilty stabber and actively prevented him from receiving a forensic
examination, and therefore the evidence of his injuries was not properly
retained to corroborate his self-defense claim. Defendant’s contention is
belied by the facts. Defendant was examined by EMS staff immediately after
being found by the police, and was later sent to Wilmington Hospital for
further examination and treatment. There are multiple reports describing the
existence, location, type, severity of the laceration. The Court finds that
simply failing to take pictures of that laceration, in light of all the other

information that has been retained, does not constitute negligence or bad faith.

 

31 Deberry, at 752.

The other two factors also disfavor dismissing the case or a missing
evidence instruction. Defendant claims that “without a complete account of
Defendant’s injuries,” Defendant’s defense will “eff`ectively be limited to [his
own] recollection of the incident.”32 But Defendant does not need to limit his
case to his own recollection As discussed above, there is numerous substitute
evidence, i.e, the medical records, that documents the laceration. They were
prepared by neutral third parties, and their probative value and reliability are
almost as strong as the pictures. In addition, there seems to be sufficient
inculpatory evidence to sustain a conviction at trial. Three victims stated that
Defendant was the aggressor and stabber. Neighbors claimed that Defendant
acted aggressively towards them within the 24 hours before the incident.
Although Defendant claimed that it was the victims who first started to stab
him, the victims sustained much more serious injuries and blood loss than he
did, which creates an issue of credibility for Defendant. Hence, there is ample

evidence in the record by which the State can sustain a conviction

 

32 Mot. at 7.

For the foregoing reasons, Defendant is not entitled to dismissal of the

case, or a missing evidence instruction Defendant’s Motion to

/"§

Dismiss/Motion in Limine is hereby DENIED.

IT IS SO ORDERED.

 

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