           IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARSHALL C. BROWN,                     §
                                       §      No. 282, 2017
      Defendant Below,                 §
      Appellant,                       §      Court Below—Superior Court
                                       §      of the State of Delaware
      v.                               §
                                       §      Cr. ID No. 1505023582A(N)
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                             Submitted: March 7, 2018
                             Decided: March 13, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                     ORDER

      This 13th day of March, 2018, having considered the parties’ briefs and the

record below, it appears to the Court that:

             A New Castle County grand jury indicted Appellant Marshall Brown

on (i) Home Invasion; (ii) two counts of First Degree Assault; (iii) First Degree

Burglary; (iv) First Degree Reckless Endangering; (v) three counts of First Degree

Robbery; (vi) eight counts of Possession of a Firearm During the Commission of a

Felony; (vii) eight counts of Wearing a Disguise During the Commission of a

Felony; (viii) Second Degree Conspiracy; (ix) Endangering the Welfare of a Child;

and (x) Possession of a Firearm by a Person Prohibited. Brown’s first trial in 2016

ended in a mistrial when the jury was unable to reach a unanimous verdict. When
Brown was retried in 2017, the jury found Brown guilty of all charges except for

Possession of a Firearm by a Person Prohibited. After declaring Brown a habitual

offender, the Superior Court sentenced Brown to life imprisonment plus 388 years.

                In this appeal, Marshall Brown raises a single issue: whether the

observation of Brown by two witnesses at his first trial was the equivalent of an

impermissibly suggestive pretrial identification procedure. Brown claims that it was

and that, therefore, his due-process rights were violated when the two witnesses were

permitted to offer identification testimony at his second trial.

                At the first trial, the State admitted the two witnesses’ prior out-of-court

identifications, but did not ask them to identify Brown in court. At the beginning of

the third day of trial, after the witnesses testified, the State requested the court to lift

its sequestration order so that the witnesses could observe the balance of the trial.

Defense counsel did not object, and the Superior Court granted the request. Brown

claims that the witnesses’ “observing him extensively at the first trial [after they

testified] was analogous to [an] unduly suggestive pretrial show-up identification,”1

requiring exclusion of courtroom identification by the witness at the second trial.

                Brown raised the issue below by way of a motion in limine to preclude

the witnesses from identifying him in court at his second trial. After a hearing at




1
    Appellant’s Opening Br. 10.
                                              2
which both witnesses testified, the Superior Court denied the motion and allowed

both witnesses to provide identification testimony at trial.

              We review a denial of a motion to exclude evidence after an evidentiary

hearing for abuse of discretion.2 Our review of the identification procedure for

compliance with the Constitution is de novo.3

              Because the “primary aim of excluding identification evidence obtained

under unnecessarily suggestive circumstances is to deter law enforcement use of

improper procedures,”4 and the police did not intentionally orchestrate the

witnesses’ observation of Brown at the first trial to procure an identification, the

Superior Court correctly concluded that no constitutional violation occurred.

Moreover, after hearing the witnesses’ testimony during a pretrial hearing, the

Superior Court thoughtfully balanced the probative value of the testimony against

the danger of unfair prejudice under D.R.E. 403. Under the circumstances, allowing

the challenged testimony was not an abuse of discretion.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                          BY THE COURT:

                                          /s/ Gary F. Traynor
                                          Justice

2
  Culver v. State, 956 A.2d 5, 10 (Del. 2008).
3
  See id.
4
  Perry v. New Hampshire, 565 U.S. 228, 241 (2012).
                                             3
