           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                    )
                                      )
                    v.                )          I.D. No. 1604008779
                                      )
KARL BENSON,                          )
                                      )
                    Defendant.        )


                            MEMORANDUM OPINION

         Presently before the court are two motions: (1) a motion to exclude an

utterance made by witness Dominique Roberson to the police; and (2) a motion

under Deberry v. State to exclude evidence relating to phone texts or,

alternatively, a motion for an adverse presumption instruction relating to those

texts.    The court has conducted two evidentiary hearings relating to these

motions.     The following summarizes the court’s rulings and the reasons for

them.

                                   Background

         Defendant is charged with Drug Dealing, Conspiracy and Possession of a

Controlled Substance. According to the State, in April 2016 the police received

a tip that Defendant was selling heroin and that he used a phone with the

number 302-401-3806. The county police made contact with Defendant

through that telephone number via text messages. The police then contacted

that phone number using text messaging and arranged to purchase five

bundles of heroin for two hundred dollars on April 13 at an All Stop parking lot
outside of Newark.    At 2256 hours that night, an undercover police officer

texted Defendant he was in the parking lot in a Chevrolet Impala, and

Defendant responded he was walking toward the Impala. Shortly thereafter the

police observed Defendant and a female, later identified as Dominique

Roberson, approach the All Stop and pause at the front door. The female then

walked over to the Impala, at which time an officer sitting in the Impala asked

her “you good?”    She responded “I’m good.”     The police testified at the first

evidentiary hearing that this verbal exchange is code for ascertaining if the

drug purchase is going forward.       At roughly the same time as the female

approached the Impala one of the police officers received a text from Defendant

“I’m here.” Both the female and Defendant were promptly arrested. A search

of the female revealed five bundles of heroin and a white Samsung Galaxy cell

phone; a search of Defendant revealed a black Samsung Galaxy phone with a

cracked screen.

                                    Analysis

      The court will first consider the objections to Roberson’s question to the

police about the amount of the narcotics.      It will then consider the Deberry

challenges relating to the lost phone texts.

                   1. The Roberson Question to the Police

      While being transported to the station after her arrest Ms. Roberson

asked the officers “Do you know how much dope it was?” Defendant seeks to

exclude this statement because (1) it is hearsay and (2) admission of the

statement deprives him of his right to confront the witnesses against him.


                                        2
       Ms. Roberson’s question to the officers is not hearsay because it was not

an “assertion.” The term “hearsay” is defined by the Rules of Evidence as “a

statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.”1 A key

element of this definition is that the utterance2 must be a “statement.” The

rules, in turn, define “statement” as “an oral or written assertion.”3 Ms.

Roberson’s question “do you know how much dope it was?” is not an assertion.

“A question, by its very definition, is not an assertion.”4 Thus, according to the

Third Circuit Court of Appeals, “[c]ourts have held that questions and inquiries

are generally not hearsay.”5 The court therefore DENIES Defendant’s motion to

exclude that question on the basis of hearsay.

       Defendant’s second ground for the exclusion of Ms. Roberson’s statement

is based on the Confrontation Clause of the federal Constitution. That clause,

however, is not implicated here because Ms. Roberson is available to testify at

trial and is subject to cross-examination. Her availability is enough to satisfy

the Confrontation Clause: “The Confrontation Clause of the Sixth Amendment

gives the accused the right ‘to be confronted with the witnesses against him.’




1  D.R.E. 801(c).
2  In certain instances non-verbal conduct can also amount to a statement subject to the
hearsay rule. That circumstance is not present here.
3 D.R.E. 801(a).
4   State v. Russo, 700 A.2d 161(Del. Super. 1996), aff’d mem., 694 A.2d 48 (Del. 1997); see
also Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 330 (3d Cir. 2005) ("Courts have held
that questions and inquiries are generally not hearsay because the declarant does not have the
requisite assertive intent, even if the question 'convey[s] an implicit message' or provides
information about the declarant's assumptions or beliefs.").
5 423 F.3d at 330.


                                              3
This has long been read as securing an adequate opportunity to cross-examine

adverse witnesses.”6 As one federal appeals court similarly put it:

                 The Confrontation Clause is satisfied when the
                 hearsay evidence falls within a firmly rooted exception
                 to the hearsay rule or is supported by facts that
                 otherwise demonstrate the statement's reliability; the
                 Confrontation Clause is alternatively satisfied when
                 the hearsay declarant testifies at trial and is available
                 for cross-examination.7

Defendant’s motion to exclude Ms. Roberson’s statement on the basis of the

Confrontation Clause is therefore DENIED.

                   2. The Deberry Challenge to the Text Messages

        The text messages exchanged between the police and the Defendant have

been     lost,   and    Defendant      has    moved     to   exclude   evidence   of   them.

Alternatively, he asks that the jury be instructed that it should presume the

text messages were exculpatory. In this regard the court has made factual

findings based upon the evidence adduced at the two evidentiary hearings:

                As commonly done, the police used a pre-paid cell phone when

                 they texted the Defendant. They do this so that their cell phone

                 numbers change frequently and therefore do not become familiar

                 to drug dealers.

                The County police borrowed a pre-paid cell phone from a State

                 police officer to use in this investigation. After the transaction was

                 completed and Defendant was arrested, the County police returned

                 the pre-paid phone to the State police officer who had lent it to

6   United States v. Owens, 484 U.S. 554, 557 (1988).
7   Bear Stops v. U.S., 339 F.3d 777, 781 (8th Cir. 2003).

                                                4
    them. At some unknown time thereafter the pre-paid phone was

    lost or discarded.

   The police seized two cell phones at the time of the arrest; one

    belonged to Ms. Roberson and the other belonged to Defendant.

    The screen of Defendant’s phone contained the message “Na im

    waitn here” and indicates it was sent at 11:20 p.m. from the

    borrowed pre-paid cell phone the county police were using.

   The police obtained a warrant to search Defendant’s cell phone.

    When they attempted to search the contents of the phone’s

    memory they were able to recover the phone’s sim card, but they

    found that access to the phone’s memory was blocked and

    required a password to open it.

   The forensic unit of the County Police unsuccessfully tried several

    non-destructive methods to obtain access to the phone’s memory.

    After exhausting all reasonable methods the police opted to use a

    technique known as a “chip-off.” This method entails heating the

    cell phone so that the memory chip can be physically extracted.

    Once the memory chip is extracted it is connected to a device

    which attempts to read the data on the chip. The chip-off destroys

    the phone, and once this method is used there is no further

    recourse for obtaining the data in it.

   According to the forensic detective who tried to obtain the data

    from the phone and who performed the chip-off, the chip-off

                                5
                technique has been successful approximately 85 percent of the

                times the county police have used it. No data has been recovered

                in the remaining 15 percent and, because of the destructive nature

                of the test, that data has likely been lost forever.

               The chip-off attempt was made on May 4, 2016—roughly three

                weeks after Defendant had been arrested. At no time did the police

                seek to obtain the pass code from Defendant or his attorney, and

                neither Defendant nor his attorney was notified in advance by the

                police that they intended to perform a destructive test. (It is

                unclear from the record whether Defendant was represented at

                that time. The earliest indication that Mr. Benson was represented

                is a May 13 letter from a prosecutor to Defendant’s former counsel

                accompanying the State’s discovery response.)

               With commendable candor the police admitted at the second

                evidentiary hearing that there were no exigent circumstances

                requiring an immediate chip-off attempt.

                                 A. The Deberry Request

        Evidence sometime gets lost. When this happens the due process clause

of the Delaware constitution provides protection for criminal Defendants who

are harmed when the State loses evidence. The seminal case in this regard is

the Delaware Supreme Court’s decision in Deberry v. State.8 The Defendant has

shown that the Defendant’s cell phone is Deberry material. The decision as to


8   457 A.2d 744 (Del. 1983).

                                            6
what consequences, if any, should flow from the destruction of his telephone

must await the evidence at trial and is therefore RESERVED until further order

of the court.

        In the seminal Delaware Supreme Court case Deberry v. State, the

Defendant was convicted of rape and associated crimes.           According to the

evidence, the victim was cut on her hand during the assault and bled

profusely, so much so that it was reasonable to expect that her blood would

have been found on her assailant’s clothing. The police collected the clothing

Deberry wore the night of the rape, but sometime before trial that clothing was

lost. Deberry, who denied any role in the assault, argued that the loss of his

clothing deprived him of any chance of showing it did not have the victim’s

blood on it. The Supreme Court characterized the issue as “what should be

done when the State takes possession of exculpatory (or potentially

exculpatory) evidence and then loses or destroys it before or in response to the

Defendant's discovery request.”9 The Deberry court posited a two step analysis

to be applied when there is a claim of lost evidence. In the first step, the court

considers:

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



9   Id. at 749.

                                           7
                   3) if there was a duty to preserve, was the duty
                   breached, and what consequences should flow from a
                   breach?10

If the court finds a breach of a duty to preserve, the second step in the analysis

entails a determination of what remedy, if any, should be provided.                        This

involves consideration of “(1) the degree of negligence involved; (2) the

importance of the missing evidence; and (3) the sufficiency of other evidence

produced at trial.”

         The       application   of   the   first       step   in   the   Deberry   analysis   is

straightforward:

                   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 Brady?

         Defendant’s telephone texts fall within this because Rule 16 obligated the

State, upon request, to “disclose to the Defendant and make available for

inspection . . . any relevant written or recorded statements made by the

Defendant.” Benson’s text messages were a written statement and therefore

needed to be produced.

                   2. If so, did the government have a duty to preserve the material?

         The duty to preserve the text messages on Defendant’s phone readily

flows from the State’s obligation to produce them under Rule 16. If the State

had a duty to produce the messages, it stands to reason it also had a duty to

preserve them.



10   Id. at 750.

                                                    8
              3. If there was a duty to preserve, was the duty breached, and
              what consequences should flow from a breach?

       One copy of the text messages was lost when the prepaid phone was

turned over to another officer for use in different undercover operations. The

court finds that under these circumstances the police had no duty to preserve

the text messages on the pre-paid police cell phone.                 The police had every

reason to believe that the messages would be retrieved from Defendant’s phone.

The constitution does not require the government to preserve every exact11

copy of a document subject to production under Rule 16.                   Otherwise police

stations and prosecutor’s offices would quickly become overrun with the

multiple photocopies inevitably generated in a criminal investigation and

prosecution.

       A different result stems from the destruction of Defendant’s phone. The

police knew, or should have known it was the last copy of the text exchanges

between the officer and Benson.            They also knew there was roughly a 15

percent chance that the phone would be destroyed and the data lost forever

during the chip-off technique. It may be that under emergency circumstances

there is no duty to preserve the phone and the State would be free to perform

chip-offs as a last resort. It does not take a fertile imagination to conjure up a

scenario where the safety of an individual will be at risk if the data on the cell

phone is not immediately accessed. The court need not decide the issue here,




11 There may be a different result when a copy contains marginalia not found on the original or
other copies. That issue is not before the court.

                                              9
however, because there concededly was no urgency attached to accessing the

data.

        The Supreme Court has on several occasions wisely “declined to

prescribe the exact procedures that law enforcement agencies in this State

must follow in order to fulfill their duties to preserve evidence,”12 and far be it

from this court to ignore that advice. It notes, however, that the analysis here

may have been very different if, in this non-emergent situation, the police had

first given Defendant the option of providing his passcode before attempting a

chip-off of his phone.

        Having found that the Defendant’s cell phone was Deberry material, the

next step is to decide what consequences should flow from its loss. This

requires consideration of three factors:

        1. The degree of negligence involved.

        On a zero to 10 Richter scale of negligence, the negligence here would

have registered at about a 1.        The court finds the officer who attempted to

extract the data was well-trained and experienced. He first exhausted the non-

destructive methods available to him before turning to the last resort. Even

then, the officer was reasonable in assuming he would be able to preserve the

data; although the failure rate for these tests at the County Police laboratory is

about 15 percent, the officer involved here had lost the data only three times,

two of which occurred when he was in training.

        2. The importance of the missing evidence.

12 See Johnson v. State, 27 A.3d 541, 547 (Del. 2011)(explaining that the second step of the
Deberry analysis requires an examination of the State's duty to preserve).

                                            10
        There is little reason to believe at this time that the data on the cell

phone is central to this case. Although the loss of the data will prevent the jury

from seeing the precise language used in the exchange between the Defendant

and the officer, the State’s case does not seem to hinge on exactly what was

written between the two.         It is often the case in this court that drug

prosecutions proceed without recordings of conversations between confidential

informants or undercover officers and the suspect. To be sure the loss of the

data might hinder a future defendant’s ability to argue the officer was texting to

someone else’s phone. But that avenue seems to have been foreclosed here

because the sole retrievable message on Defendant’s phone—the one that

appeared on the screen when the phone was seized from him—shows that the

officer was texting to Defendant’s phone.

        At the moment it appears there is little likelihood that the data on the

cell phone would have exculpated Defendant. The absence of any potential for

exculpation is a key factor in a Deberry analysis. In Jones v. State,13 for

example, the Supreme Court found that the failure to test any items seized in a

drug raid for fingerprints was not a Deberry violation because the presence or

absence of Jones’ fingerprints on any particular item would not be very

meaningful.” Defendant Benson argues that the loss of the data prevents him

from presenting a linguistics expert who might be able to testify that the word

patterns in the messages show that Ms. Roberson, not Defendant, was using

Defendant’s phone and was the one texting with the police. When asked about


13   841 A.2d 307 (Del. 2004).

                                        11
this at oral argument, Defendant’s counsel acknowledged he had no evidence

to show it was possible to make such an assessment from a few terse messages

on the phone.      The speculative possibility that this could be done does not

elevate the data to matter of critical importance here.14

       3. The sufficiency of other evidence produced at trial.

       There is other evidence of the conversation, most notably the testimony

of the officer who texted with Defendant. The officer prepared a report shortly

after Defendant’s arrest which documented the text conversation. In Wainer v.

State15 the Supreme Court held that no Deberry remedy was necessary when a

police officer lost the notes he took during an interview because “the police

report incorporated the substance of the notes and was written the same day

the interviews were conducted.”

                                     B. Deberry Relief

       After considering the above factors, the court must determine if relief is

warranted, and if so, what relief the defendant is entitled to. Whether or not the

defendant has suffered any prejudice directs this determination.

       Where there is availability of reliable secondary evidence and sufficient

remaining evidence to support the defendant’s conviction, relief will not be

afforded to the defendant. In Hammond v. State16 where there was a failure to

preserve a crash vehicle in a vehicular homicide case, Hammond moved for



14   See Powell v. State, 49 A.3d 1090, 1102 (Del. 2012)(“Nor can a speculative possibility of
‘missing evidence’ fairly be said to have ‘substantially prejudiced’ Powell’s case.”)(internal
editing marks omitted).
15 2005 WL 535010 (Del.).
16 569 A.2d 81 (Del. 1989).


                                             12
dismissal, or, alternatively, an instruction to the jury that the lost evidence if

available would be exculpatory in nature. This court denied both motions

because even in the absence of the crash vehicle, the State’s case against

Hammond was so strong that it was not so fundamentally unfair that

Hammond’s prosecution should have been barred as a denial of due process.

       Where, however, the missing evidence is integral to securing a conviction,

and secondary evidence is not available, this Court is permitted to give a Lolly

instruction.17    Such an instruction asks the jury to infer that the missing

evidence, had it been preserved, would not have incriminated the defendant

and would have tended to prove the defendant not guilty.

                                        Conclusion

       The Supreme Court has held that the determination of whether a

Defendant is entitled to relief under Deberry must be made on the basis of the

entire record. Although the record built to date suggests that Defendant will

not be entitled to any relief, a complete record will provide a better gauge the

centrality of the data and the prejudice caused by their loss. Therefore, the

court will defer its ruling on whether Benson is entitled to relief under Deberry

until it has heard all of the evidence.18




17  611 A.2d 956 (Del. 1992).
18  Even if the court declines to give any Deberry relief, Benson will be free to argue the
significance of the lost data to the jury. In Hendricks v. State, 871 A.2d 1118 (Del. 2005) the
Court wrote:
               Although Hendricks’ attorney was free to argue to the jury the
               significance of the drug paraphernalia that was missing because
               of the negligent destruction, the Superior Court properly denied
               Hendricks’ request for a “missing evidence” jury instruction.

                                              13
Date: May 31, 2017                               __________________________
                                                    John A. Parkins, Jr.
                                                    Superior Court Judge




oc:   Prothonotary

cc:   Amanda J. DiLiberto, Esquire, Department of Justice, Wilmington,
      Delaware
      Benjamin S. Gifford IV, Esquire, The Law Offices of Benjamin S. Gifford
      IV, Wilmington, Delaware




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