Opinion
Docket No. 291, 1998.
March 18, 1999.
Appeal from Superior Court, New Castle County, CrA IN95-01-0853.
AFFIRMED.
Unpublished Opinion is below.
HENRY J. ANDERSON, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 291, 1998. In the Supreme Court of the State of Delaware. Submitted: March 16, 1999. Decided: March 18, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County Cr. A. No IN95-01-0853.
Before VEASEY, Chief Justice, WALSH and HARTNETT, Justices.
ORDER
This 18th day of March, 1999, upon consideration of the briefs of the parties, it appears to the Court that:
(1) Henry J. Anderson appeals from the judgment of the trial court in a jury trial, resulting in his conviction for First Degree Attempted Robbery. Specifically, Anderson challenges the trial court's refusal to instruct the jury that missing or mis-preserved evidence would have been exculpable to him if available. The trial court refused to issue this instruction, finding that the circumstances did not warrant it.
(2) The events leading to Anderson's conviction began on January 7, 1995 at approximately 5:00 a.m. At that time, Robert Kyelberg was delivering newspapers to a business located at 7th and Washington streets in Wilmington, Delaware. When Kyelberg returned to his van, a man inside the van attempted to reach into Kyelberg's vest pocket, where the van keys were located. According to Kyelberg, the assailant was black, wearing a torn coat, and approximately the same size as himself. Kyelberg hit the assailant with his elbow and the assailant hit Kyelberg in return, knocking Kyelberg's glasses off.
(3) The two men scuffled and fell out of the van's side-door onto the street. Kyelberg fell to the ground and the assailant kicked him several times in the side and the head. At this time, Kyelberg noticed a glove and a screwdriver fall to the ground. Kyelberg eventually managed to get back into the van and lock the assailant out. After the assailant departed, Kyelberg retrieved his keys from outside and drove to a nearby gas station to summon the police.
(4) Officers Simmons and Hairston of the Wilmington Police department responded to the call. Officer Simmons took a statement from Kyelberg giving a general description of the assailant. Kyelberg could not be too specific because he was not wearing his glasses through most of the confrontation. Based on this description, Officer Hairston searched the neighborhood surrounding the site of the attempted robbery.
(5) Officer Hairston found only one pedestrian, Anderson, in the area around Seventh and Washington. Anderson met the description provided by Kyelberg of a black male wearing a dark jacket and blue jeans with gloves. A later pat-down search revealed that Anderson had a screwdriver in his back pocket. Officer Hairston also noticed what appeared to be dried blood on Anderson's boots in spots that were smaller than a dime. After an initial identification by Kyelberg, Officer Hairston took Anderson to police headquarters where he noted no observable cuts, scrapes or bruises on Anderson's person or blood on his clothing.
Although Anderson was not wearing gloves when he was stopped, Officer Hairston saw him drop a pair of work gloves prior to his apprehension.
At the time of Anderson's arrest, another officer noted blood on Anderson's face, but Anderson wiped it away before Officer Hairston could observe it himself.
(6) Officer Simmons, assisted by Detective Bowman of the Wilmington Police Department's Evidence Detection Unit, collected the physical evidence. This evidence, all seized from Anderson by Officer Hairston, consisted of a pair of work gloves, a screwdriver and a brown glass medicine bottle. Bowman placed these items in a brown paper bag on the morning of January 7, 1995. Slightly later that morning, Detective Bowman seized Anderson's shoes. Detective Bowman put all of the physical evidence in the refrigerated police evidence locker at about 8:00 a.m. on January 7.
(7) On February 17, 1995, Officer Sowden of the Wilmington Police Department transported the physical evidence, as well as blood samples from Kyelberg and Anderson, to the FBI Laboratory in Washington D.C. Only the blood samples were placed in a cooler for this 1 + to 2 hour car trip. At the FBI laboratory, Special Agent Vick conducted serology and DNA testing on the evidence. The serology testing found traces of human blood on the gloves, one boot and the screwdriver, but the DNA testing was inconclusive as to its source.
(8) At trial, the officers and detective testified as to their handling of the evidence, including the fact that the evidence was not refrigerated until 8:00 a.m. on the morning of the attempted robbery and not refrigerated on the car ride down to the FBI laboratory. Special Agent Vick testified that any number of factors can cause inconclusive DNA results, but that from his review, the Wilmington Police Department handled the evidence appropriately.
(9) We review de novo a claim that the trial court improperly denied a requested jury instruction.
See generally Lewis v. State, Del. Supr., 626 A.2d 1350, 1354 (1993).
(10) In support of his claim of error, Anderson points to the standard set by this Court in Deberry v. State. In Deberry, we held that if the State has a duty to preserve discoverable evidence and breaches that duty, the defendant is entitled to a jury instruction creating a presumption that the missing or mis-preserved evidence would have been exculpable to the defendant. We have maintained this approach notwithstanding a United States Supreme Court decision requiring the defendant to prove bad faith on the part of the police in preserving the evidence.
Del. Supr., 457 A.2d 744 (1983).
Id. at 749-50.
See Lolly v. State, Del. Supr., 611 A.2d 956, 959-60 (1992) (discussing Arizona v. Youngblood, 488 U.S. 51 (1988)).
(11) For the Deberry instruction to apply, however, the trial court must examine the defendant's claim according to a strict paradigm. The trial court must first determine whether the evidence in question would have been subject to disclosure under Delaware Superior Court Criminal Rule 16 ("Criminal Rule 16"). If yes, the trial court must determine whether the State had a duty to preserve the evidence, and the trial court must then determine whether the State breached this duty. Only then can the trial court go on to determine the degree of the State's culpability and the importance of the missing evidence in deciding whether the Deberry instruction is appropriate.
See Hammond v. State, Del. Supr., 569 A.2d 81, 85-86 (1989).
Id.
Id.
Id.
(12) In this case, the blood evidence (if it exists) is clearly subject to disclosure under Criminal Rule 16. Additionally, under Deberry, Hammond and Lolly, the State has a duty to preserve this blood evidence. Where Anderson's claim fails, however, is in the third inquiry: whether the State breached its duty to preserve the evidence.
(13) Anderson points to several references by Special Agent Vick at trial as to standard procedures employed in preserving blood evidence. Special Agent Vick testified that samples with alleged blood stains should be allowed to dry, then placed in paper bags, then refrigerated "as quickly as you can." Anderson then notes Detective Bowman's testimony that he did not check whether the blood on the boots or the gloves was dry before putting them in the paper bag. He further points to the delay (of about two hours) in initially refrigerating the blood samples. Finally, he notes that some of the items of evidence were not refrigerated on the ride down to the FBI Laboratory.
(14) The issue is whether these three uncontradicted assertions suffice to prove that the State breached its duty with respect to the evidence. Anderson argues that if the State had followed the correct procedures, the DNA testing might have exonerated him rather than give inconclusive results and that this presumption should be available to him. The State, on the other hand, argues that Anderson presents no evidence that the samples were degraded due to the State's actions. In fact, the State points to Special Agent Vick's testimony that the actions of the Wilmington Police Department in gathering and preserving the evidence "had no effect on [the inconclusive results of the DNA test] whatsoever." From his review of what was done, "it appeared everything was done appropriately." Vick also stated that inconclusive DNA tests happen "all the time."
The State notes that it was raining at the time of Anderson's apprehension. Although he did not specify a reason for the inconclusive results, Special Agent Vick testified that water could have diluted the blood samples to the point that they would be of no use in a DNA test.
(15) Anderson's claim must fail because he has failed to make any showing that the State bears any responsibility for the inconclusive results of the DNA test. The only testimony presented (by either party) as to the police compliance with evidence gathering techniques is that of Special Agent Vick who found the police did nothing wrong. In Lolly, the police never gathered any blood evidence and the trial court made a specific finding of negligence on the part of the police. In Hammond, the police impounded the vehicle involved in an accident but disposed of it before any tests could be conducted on anything within it, actions that we found to be negligent. In this case, the trial court made no finding of negligence, and we cannot say that it erred in this regard.
(16) Finally, Anderson claims that a missing evidence instruction is appropriate because the FBI failed to conduct a second form of DNA testing that does not require as large of a blood sample as the RFLP test used by Special Agent Vick. The State correctly points out that the Deberry standard only requires that the State adequately gather and preserve physical evidence. It does not require any specific testing on that physical evidence. If Anderson felt that the RFLP testing was inadequate, he could have conducted any other tests that he wanted on the items seized at the time of his arrest.
Deberry, 457 A.2d at 751.
NOW THEREFORE IT IS HEREBY ORDERED that the decision of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ E. NORMAN VEASEY ____________________ Chief Justice