Opinion
ID: 1012017349
11-20-2015
STATE OF DELAWARE v. IRA BROWN, Defendant.
pc: Andew J. Vella, Deputy Attorney General Michael W. Modica, Esquire
FINAL ORDER
Upon Defendant's Motion for Reargument - DENIED.
1. After the State submitted the report of the retesting called for by the court's order expanding the record in this Rule 61 proceeding, Defendant responded on November 11, 2015, denying the report's correctness. Defendant saw a discrepancy between the weight determined by the original testing, "an aggregate 4.08 grams," and the weight reported by the retesting, "6.364 or 6 grams." Because the perceived discrepancy was unexplained, Defendant requested a "fact finding hearing to determine the basis for the discrepancy."
2. On November 13, 2015, the court ordered the State to reply to Defendant's November 11, 2015 response. On November 17, 2015, the State submitted a letter providing in part:
As part of the analyses performed at the Division of Forensic Sciences, the drugs were reweighed. The weight of the drugs noted on retesting was greater than the weight when they were originally tested. Brown claims that the discrepancy in the original and retesting weights warrants a hearing. The State has enclosed documents which explain the difference between the original and retesting weights.The "enclosed documents," were a CD ROM with two documents totaling 288 pages, many of which were photographs of drug packets and otherwise useless. The State, however, also provided a six-page, hard copy specifically showing testing results, with portions highlighted.
3. Almost immediately after the court received the State's reply, Defendant, with permission, filed a one-page sur-reply. The sur-reply began: "This is to repeat Defendant's request for a fact finding hearing ....." The basis for the hearing was to clear up Defendant's "confusion."
4. On November 18, 2015, the court denied Defendant's motion for postconviction relief in a letter/order, also giving Defendant leave to file for reargument without delay. On November 19, 2015, Defendant filed an eight-paragraph motion for reargument, essentially reiterating the alleged discrepancy between the weight testified to at trial and the weight reported by the retesting. The increase being "2.284 grams."
5. The motion for reargument presents nothing beyond Defendant's argument made November 11, and 19, 2015. Reargument's purpose is not simply to tell the court, yet again, that it is wrong. Accordingly, nothing has been presented in Defendant's motion justifying reargument of the order denying postconviction relief, including the repeated requests for an evidentiary hearing.
6. It appears the relevant retesting involved three items (A1, A2a1, and A2a2). One item (A1) weighed 4.177 grams. The second item (A2a1) weighed 2.178 grams, and the third item (A2a2) weighed 0.09 grams. Thus, there seems to be a correspondence, even if it is not perfect, between the testimony and the retesting's results. The retesting undeniably confirmed the substance was heroin over the trafficking weight. And, Defendant's suspicions based on the weights do not suggest "fraud," much less that Defendant is innocent.
7. Woe unto Defendant if, on appeal, he presents an argument to the Delaware Supreme Court that he could have presented now. And, woe unto the State if it confesses error and agrees to an evidentiary hearing after forcing me to spend my final hours as a judge sorting through the record to find the evidence without the State's guidance.
For the foregoing reasons, Defendant's Motion for Reargument is DENIED.
IT IS SO ORDERED. Date: November 20, 2015
/s/ Fred S. Silverman
Judge oc: Prothonotary (Criminal)
pc: Andew J. Vella, Deputy Attorney General
Michael W. Modica, Esquire