           IN THE SUPREME COURT OF THE STATE OF DELAWARE


STEVEN BAYNUM,                          §
                                        §     No. 168, 2015
      Defendant Below-Appellant,        §
                                        §     Court Below:
             v.                         §     Superior Court of the
                                        §     State of Delaware
STATE OF DELAWARE,                      §
                                        §
                                        §     Cr. I.D. No. 1310015013A
      Plaintiff Below-Appellee.         §

                          Submitted: January 13, 2016
                          Decided: February 8, 2016

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

Upon appeal from the Superior Court. AFFIRMED.

Santino Ceccotti, Esquire, Office of Public Defender, Wilmington, Delaware for
Appellant.

Maria T. Knoll, Esquire, Department of Justice, Wilmington, Delaware for Appellee.



VALIHURA, Justice:
              Pending before this Court is an appeal from the Superior Court’s October 21, 2014

bench ruling, denying Steven Baynum’s (“Baynum”) Motion in Limine (“Motion”) prior

to his trial on charges stemming from an incident at the residence of Manisha Baynum

(“Manisha”). The bench ruling was issued following an evidentiary hearing conducted in

connection with Baynum’s Motion, which sought dismissal of his case before trial or, in

the alternative, a jury instruction pursuant to Lolly v. State1 and Deberry v. State2 on the

theory that the State failed to collect or preserve potentially material evidence.

              Baynum appeals his convictions and contends that the Superior Court erred in

denying his Motion. Specifically, he urges that a Lolly instruction should have been

provided to the jury following the State’s alleged failure to collect and preserve a certain

inconsistent statement made by Manisha while she was present in a New Castle County

Police Department interview room. Baynum requests that his convictions be reversed.3

              For the reasons set forth below, we AFFIRM the Superior Court decision of

October 21, 2014 and Baynum’s convictions.




                                                            
1
  611 A.2d 956 (Del. 1992).
2
  457 A.2d 744 (Del. 1983).
3
  A jury found Baynum guilty of two counts of Burglary First Degree, with one count as a lesser
included offense of Home Invasion; two counts of Unlawful Imprisonment Second Degree; two
counts of Menacing; one count of Assault Third Degree; one count of Harassment; and one count
of Offensive Touching. On January 21, 2015, the State filed a Motion to Declare Baynum a
Habitual Offender pursuant to 11 Del. C. § 4214(a). On March 20, 2015, the Superior Court
granted the State’s motion. With respect to the Burglary First Degree charges, which the parties
agreed to merge for sentencing purposes, the trial court sentenced Baynum to 17 years at Level
V as a habitual offender. As to the remaining charges, the Superior Court sentenced Baynum to
a total of four years and three months at Level V, suspended for decreasing levels of supervision.
                                                               1
                  I.            RELEVANT FACTS AND PROCEDURAL BACKGROUND

              Baynum and Manisha married in 2009. In 2012, the couple experimented with

having an “open marriage” and shared an intimate experience with Dakota Holdren

(“Dakota”). Thereafter, Manisha was romantically involved with Dakota. In September

2013, Manisha filed for divorce from Baynum. That month, Manisha was granted a

Family Court Order affording her exclusive use of 28 Harvest Lane in Newark,

Delaware, a property owned by Baynum’s grandparents. The Order prohibited Baynum

from accessing the residence and, as a result, he often stayed with his grandparents at

their 951 New London Road residence, located on the same property as 28 Harvest

Lane.4

              On the evening of October 23, 2013, and in the early morning hours of October

24, Dakota and Manisha were at 28 Harvest Lane. Interested in “check[ing] out the

place,” Baynum communicated with Manisha via text messages and phone calls

regarding whether he could come over to 28 Harvest Lane. After being dissuaded by

Manisha, Baynum temporarily refrained from going to the house, although he “decided to

put a ladder at the base of [28 Harvest Lane’s] driveway . . . .”5

              Later that evening, Manisha was awakened by noises emanating from the

bathroom. She directed her cell phone light towards the doorway of her bedroom,

discovering a crouched Baynum, who then jumped on the bed, pulled a blanket off of

Dakota, and started punching him. After convincing Baynum to join her in the kitchen,
                                                            
4
  Baynum testified that, in the period preceding October 23, 2014, he often stayed with Manisha
and their children at 28 Harvest Lane, even after the Family Court Order was entered.
5
  A131 (Tr. 98:7-8).
                                                               2
Manisha dialed 9-1-1, but was unable to speak with an operator because Baynum “took

the phone out of [her] hands” and “took the battery out of the phone.”6

              Thereafter, Baynum “dragged” Manisha back to the bedroom, where he proceeded

to “tie up” Dakota utilizing an ethernet cord. Baynum then pushed Manisha onto her

stomach and attempted to tie her hands together using an iPhone charging cord. Manisha

testified that she bit Baynum on his arm during the struggle.7 Baynum responded by

punching her in the face and holding a knife to her throat.

              At approximately 3:00 a.m. on October 24, New Castle County police officers

were dispatched to 28 Harvest Lane in response to a “9-1-1 hang-up.” When the officers

arrived at the residence, they discovered a red ladder blocking access to the property’s

driveway. The officers knocked on the front door and announced themselves as police.8

Upon hearing the officers, Dakota “ran towards the door,” opening it, but then he

returned to the bedroom after hearing Manisha “holler.” When Dakota returned to the

bedroom, Baynum “got up and ran.” Manisha and Dakota then fled the residence through

a side door, meeting the officers and stating that Baynum had a knife. When the officers

ultimately searched the residences at 28 Harvest Lane and 951 New London Road, they

did not find Baynum.
                                                            
6
  Dakota and Manisha testified that, during the course of the scuffle, Baynum stole their cell
phones. Further, while in the kitchen, Manisha sprayed Baynum with bleach and “picked up” a
kitchen knife. Dakota testified that Manisha also possessed a “decorative sword” while in the
kitchen. According to Manisha, however, Baynum held the decorative sword and “stuck it in the
kitchen floor.”
7
  Baynum testified that the bite mark that appeared on his arm after the incident was the result of
the fact that he was “chewing” on his arm during his stint in a Maryland holding cell after his
capture.
8
  Officer Brooks Fitzpatrick testified that, simultaneous with his knock on the front door, he
“heard a loud scream, sort of like a shriek that came out from inside the residence.”
                                                               3
              Later in the morning on October 24, Baynum appeared at his grandparents’

residence, explaining to his grandmother that “he had beat the crap out of the man that

was living -- sleeping with his wife. And [Baynum] said [he] was just trying to defend

[his] -- [his] wedding vows, reaffirming his marriage.”            After Baynum left, his

grandmother informed the police. Ultimately, after a foot pursuit during which he eluded

a Delaware State Trooper, Baynum was apprehended in Elkton, Maryland.

              On October 24, 2013, Detective Steven Burse (“Burse”) interviewed Manisha at

the New Castle County Police Department. Burse conducted the initial portion of the

interview in two segments, exiting the room once before re-entering with follow-up

questions for Manisha after interviewing Dakota.9 Both of the initial segments of the

interview were video-recorded. After concluding the second segment, Burse turned off

the video recording equipment because he deemed the interview over, and proceeded to

get the Department’s “evidence guys” to photograph Manisha and Dakota.

              During the period between 8:51 a.m. and 9:51 a.m., Manisha was alone in the

interview room, not being recorded, and placed at least two phone calls.             One of

Manisha’s telephone conversations was overheard by Detective John Ziemba (“Ziemba”)

in the Department’s “review room,”10 and he subsequently informed Burse that




                                                            
9
  The first segment of the interview was conducted between 6:54 a.m. and 7:54 a.m. The second
segment of the interview was conducted between 8:43 a.m. and 8:51 a.m.
10
   The New Castle County Police Department has a room that contains closed circuit television
monitors that simultaneously overlook each of the interview rooms in the station.
                                                               4
Manisha’s discussion reflected possible “inconsistencies.”11          Burse, shortly after the

video recording resumed at 9:51 a.m., entered the interview room for a third time and

“confront[ed]” Manisha about the supposed asymmetry between the substance of her

telephone conversation and her statements to the police.12

              During the third interview segment, Burse asked Manisha where she first observed

Baynum at the time of the incident, inquiring: “Are you sure? And the reason why I’m

asking is because, um, I guess whoever you were talking to, you told them something

different.” After Manisha attempted to explain the alleged discrepancy, Burse stated:

“But that’s different from what you told the person you were just talking to.” At trial,

Burse testified that the purported inconsistency was with respect to the location in which

Manisha first observed Baynum inside the residence at 28 Harvest Lane.13 Specifically,

Manisha told Burse that she first observed Baynum in the bedroom doorway when she

was “lying in bed.” According to Burse, Manisha’s alleged inconsistent statement—

spoken during the one hour of unrecorded time—“made mention of seeing [Baynum]

when she came out of the bathroom, which obviously contradict[ed] her statement of

lying in bed and seeing [Baynum] in the doorway.”14


                                                            
11
   Ziemba testified that he “[a]bsolutely” did not remember “what statement [Manisha] made that
prompted [him] to speak up to Detective Burse[.]” Further, he testified that he did not know
whether Manisha actually made an inconsistent statement.
12
   Notably, during the evidentiary hearing with respect to the Motion, Burse testified that he did
not “remember whether [he] heard [the inconsistent statement] . . . or whether Detective Ziemba
basically said, hey, there is something that she told you differently.”
13
   Manisha also described herself as a “compulsive liar” during her interview with the police.
14
   The Superior Court engaged in a lengthy colloquy with Manisha regarding the substance of
her phone calls during the unrecorded hour. Manisha suggested to the court that, during her
phone calls, she stated that she observed Baynum from her bed.
                                                               5
              At the conclusion of the October 21, 2014 evidentiary hearing, the Superior Court

determined that the officers were not subject to a duty to collect, preserve, or “create”

evidence of Manisha’s statement. The court ruled that there was no evidentiary support

for a finding of bad faith on the part of the police and the evidence in support of a finding

of negligence was, at best, “slim.” Further, the court observed that “secondary and

substantive evidence” concerning the alleged inconsistent statement “remain[ed]

available” to the parties, in view of the fact that Burse, Ziemba, and Manisha could be

called to testify at trial.

                                                               II.   ANALYSIS

                                A.             Contentions of the Parties and Standard of Review

              Baynum’s argument on appeal centers on his contention that the Superior Court

erred in deciding not to provide the jury with a Lolly instruction, in view of the State’s

alleged failure to collect and preserve Manisha’s purported inconsistent statement made

while present in a New Castle County Police Department interview room and subsequent

to the initial conclusion of her questioning by Burse.15 The State contends that the

Superior Court properly concluded that the officers did not breach a duty to collect or

preserve evidence, that Baynum had sufficient information regarding the perceived

inconsistencies in Manisha’s statements, that Baynum suffered no prejudice, and that

there was overwhelming evidence of Baynum’s guilt.


                                                            
15
  Notably, the record reflects three possible inconsistent statements by Manisha with respect to
where she first observed Baynum. Manisha suggested that she initially viewed Baynum in the
doorway to her bedroom, when she came out of the bathroom, and when she and Dakota were
awakened by Baynum punching Dakota.
                                                                      6
              This Court reviews the denial of a requested Lolly instruction de novo.16

     B.           The Superior Court Properly Refrained from Providing the Jury with a Lolly
                                              Instruction

              In Deberry, this Court imposed a duty upon the State to preserve evidence which

is material to a defendant’s guilt or innocence.17 In Lolly, this Court extended that duty to

mandate that the State “gather evidence ab initio.”18 Where missing evidence is not case

dispositive, a consequence for the State’s failure to collect or preserve material evidence

is a Lolly instruction, entitling the defendant to the inference that such evidence would

have been exculpatory.19 That is, “[a] missing evidence instruction, or ‘Lolly’ instruction,

tells the jury, in a case where the State has failed to collect or preserve evidence which is

material to the defense, to assume that the missing evidence would have tended to prove

the defendant not guilty.”20

              Deberry and its progeny set forth an approach for determining the relief

appropriate when the State fails to collect or preserve material evidence: (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 Superior Court Criminal Rule 16 or Brady

                                                            
16
   McNair v. State, 990 A.2d 398, 403 (Del. 2010) (citing Hendricks v. State, 871 A.2d 1118,
1123 (Del. 2005)).
17
   In Deberry, this Court observed that the “obligation to preserve evidence is rooted in the due
process provisions of the [F]ourteenth [A]mendment to the United States Constitution and the
Delaware Constitution, [A]rticle I, [S]ection 7.” Deberry, 457 A.2d at 751-52 (“The duty of
preservation extends not only to the Attorney General’s office, but all investigative agencies,
local, county, and state.” (internal citations omitted)).
18
   Johnson v. State, 27 A.3d 541, 545 (Del. 2011) (citing Lolly, 611 A.2d at 960).
19
   See id. at 548-49 (citing Hammond v. State, 569 A.2d 81, 90 (Del. 1989); Deberry, 457 A.2d at
754)) (“The failure to gather and/or preserve case dispositive evidence will completely preclude
a prosecution.”).
20
   McNair, 990 A.2d at 400 n.1 (citing Lolly, 611 A.2d at 962 n.6).
                                                               7
v. Maryland?21 (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 that breach? If it is determined that the State breached its duty to collect or preserve

evidence, this Court will then undertake a separate three-part analysis to determine the

consequences that flow from that breach.22                         That three-part analysis involves an

examination of: “(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.”23

       i.            The Duties to Collect, Preserve, and Disclose Potentially Material Evidence

              The State agreed that, if there were an inconsistent statement, it would have been

subject to disclosure under both Criminal Rule 16(b) and Brady.24                        But, here, the

government was not subject to an existing duty to collect and preserve the inconsistent

statement. As this Court has stated previously, we have “declined to prescribe the exact

procedures that the various law enforcement agencies in this State must follow in order to

fulfill their duties to [collect and] preserve evidence.”25 We have held, however, “that in




                                                            
21
   373 U.S. 83 (1963).
22
   Hendricks, 871 A.2d at 1124. See also Johnson, 27 A.3d at 545-46.
23
   Hendricks, 871 A.2d at 1124 (citations omitted).
24
   In a colloquy with the Superior Court, the prosecutor stated: “[T]he State feels that if there
were an inconsistency, yes, it would be Brady, any of [Manisha’s] statements would be turned
over under Rule 16 or Jencks.”
25
   Johnson, 27 A.3d at 547 (citing Deberry, 457 A.2d at 752).
                                                               8
fulfilling these duties, agencies should create rules for gathering and preserving evidence

that are broad enough to encompass any material that could be favorable to a defense.”26

              Baynum argues that the State had a duty to preserve the entirety of Manisha’s

interview because the contents were material to his guilt or innocence.           Baynum,

however, conflates the “interview” with the one hour of time after Burse concluded his

questioning and during which the alleged inconsistent statement was made. The record

evidence reflects—and Baynum does not contend otherwise—that the police recorded

each instance Burse questioned or “interviewed” Manisha and provided such recordings

to Baynum. The alleged inconsistent statement was made while Manisha was alone in

the New Castle County Police Department interview room and talking on her cell phone.

              After learning of potential inconsistencies, Burse activated the recording

equipment, returned to the interview room, re-initiated the interview with Manisha, and

confronted her about the purported differences in her statements. As the Motion itself

reflects, the State gathered and preserved Burse’s questioning of Manisha, provided

Baynum with evidence of the alleged inconsistent statement in preparation of his defense,

and, therefore, disclosed the impeachment evidence in its possession.          We are not

prepared to hold, on this record, that the State was required to keep the recording

equipment running once Burse had concluded the questioning. Thus, we agree that, on

these facts, the Superior Court did not err in concluding that the State did not breach a

duty to collect or preserve evidence.


                                                            
26
     Id.
                                                               9
      ii.           The Consequences Flowing from a Breach of the Duty to Collect or Preserve
                               Evidence, and Baynum’s Claim of Prejudice

              Even if the State had breached its duty to collect or preserve evidence, such a

breach neither precluded prosecution nor prejudiced Baynum. As noted above, “[t]he

consequences that should flow from a breach of the duty to gather or preserve evidence

are determined in accordance with a separate three-part analysis which 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.27 These factors are also applicable where a “defendant alleges

prejudice because the State failed to preserve or gather evidence . . . .”28

              Baynum concedes that there is no evidence of bad faith on the part of the police in

failing to gather or preserve Manisha’s inconsistent statement. But he urges that there

was a “high degree of negligence involved.” Specifically, he argues that the New Castle

County Police Department “policy with respect to recording procedures is to keep

recording even when the officer has left the room.” The record contradicts this assertion.

During the evidentiary hearing, Burse testified that his revised policy, since the incident

but not prior to, is to leave the recording device on when the interview subject is alone in

the interview room and no interview is being conducted. However, Ziemba testified that

he was not aware of an official policy as to the recording of interviews at the

Department’s headquarters. Further, in a colloquy with the Superior Court, counsel for
                                                            
27
     Id. at 545-46 (citations omitted).
28
     Bailey v. State, 521 A.2d 1069, 1090-91 (Del. 1987) (emphasis removed) (citation omitted).
                                                               10
Baynum acknowledged that he was not aware of a written or court-ordered policy

regarding the recording of statements. The Superior Court concluded that, at best, there

was a “slim” showing of negligence, but tempered such conclusion by finding that there

was “no written procedure, the practice up until this point was that [the police] don’t

record when . . . nobody is asking questions in [the interview room].”29 The Superior

Court added that “there’s nothing that demonstrates bad faith.”

              With respect to the importance of direct evidence of Manisha’s missing statement

considering the probative value and reliability of secondary or substitute evidence that

remained available, the Superior Court determined that secondary and substitute evidence

remained available here.                                       Ziemba, Burse, and Manisha were available sources of

secondary or substitute evidence regarding the alleged inconsistent statement.30

Likewise, the third segment of Burse’s interview with Manisha, wherein he questioned

her regarding the purported inconsistent statement, was recorded and available to

Baynum. At trial, counsel for Baynum questioned Burse and Manisha regarding the

alleged inconsistent statement.31 During summation, defense counsel argued to the jury

that Manisha made an inconsistent statement about where she first observed Baynum and




                                                            
29
   A69 (Tr. 178:12-18).
30
   As noted above, during the October 21, 2014 evidentiary hearing, the Superior Court also
engaged in a lengthy colloquy with Manisha regarding her purported inconsistent statement.
31
   Detective Ziemba provided testimony concerning the purported inconsistent statement at the
October 21, 2014 evidentiary hearing.
                                                                           11
suggested that the jurors were unable “to hear what [Manisha] said . . . because the police

decided not to record [her statement].”32

              The other evidence produced at trial was sufficient to sustain a conviction beyond

a reasonable doubt. Manisha and Dakota both testified that Baynum struck Dakota, and

Burse testified that Dakota had a “swollen upper lip.” Manisha also stated that she placed

a call to 9-1-1 using a landline but was unable to speak with an operator, and the police

responded to a “hang-up” at 28 Harvest Lane. Upon arriving at 28 Harvest Lane, the

officers discovered a ladder at the base of the driveway, which Baynum admitted to

placing there “to make sure that [Manisha] couldn’t leave . . . without letting [him] know

. . . .” Manisha and Dakota also testified that Baynum attempted to tie them up, utilizing

an iPhone charging cord and a yellow ethernet cord, respectively.                  The officers

discovered an iPhone charging cord at the kitchen entranceway upon searching 28

Harvest Lane, and Officer Fitzpatrick observed Dakota fleeing from the residence with

“his hands tied with some sort of cord” and suffering from a “panic attack of some sort.”

Manisha also testified that she bit Baynum in the course of his attempt to “tie” her up,

and that Baynum punched her in response. Baynum had a bite mark on his arm when he

was taken into custody, and Manisha had a contusion on her forehead.

              Finally, when the officers searched the residence at 951 New London Road, they

did not discover Baynum, who testified that he “figured that [Manisha] had called the

police and assumed that she had told them [he] was either [at 28 Harvest Lane] or had
                                                            
32
  B17 (Tr. 136:13-22) (“The[ police] had to have heard something because they went in and
questioned [Manisha] about it. They confronted her. What you just said is different than what
you’re telling me.”).
                                                               12
attacked her or had threatened her and that she was trying to get [him] locked up . . . .”

At approximately 3:30 a.m. on October 24, 2013, aware of the police presence at 28

Harvest Lane, Baynum “fled” from his grandparents’ house through “trees and brambles”

to a state park. Baynum reappeared at 951 New London Road later that day and told his

grandmother that he attacked Dakota, ultimately leaving the residence again before being

apprehended in Maryland. Thus, based upon the evidence, Baynum cannot establish

prejudice and the substantial evidence produced at trial was sufficient to sustain a

conviction beyond a reasonable doubt.

                                  III.   CONCLUSION

       The Superior Court properly denied Baynum’s request for dismissal or, in the

alternative, the provision of a Lolly instruction to the jury. While the State agrees that the

purported inconsistent statement would have been subject to disclosure under Criminal

Rule 16 and Brady, the State had no established duty to collect and preserve such

statement. Moreover, the State did not act negligently or with bad faith, there was

available secondary and substitute evidence of significant probative value and reliability,

and the other evidence produced at trial was sufficient to sustain a conviction beyond a

reasonable doubt.

       For the foregoing reasons, the Superior Court’s judgment of October 21, 2014 and

Baynum’s convictions are AFFIRMED.




                                             13
