1 State v. Irwin , 2014 W L 6734 821 (D el. Super. Nov. 17, 2014). SUPERIOR COURT OF THE STATE OF DELAWARE

W ILLIAM C. CARPENTER, JR. NEW CASTLE COUNTY COURTHOUSE

JUDGE 500 NORT H KING S TREET , SUITE 10400 WILMINGTON, DE 19801-3733 TELEPHO NE (302) 255- 0670

Februar y 1, 20 16

Daniel Logan, Esquire Department of Justice 820 N. French Street Wilm ington, DE

19801

Ross Flockerzie, Esquire Public Defender’s Office 820 N. French Street Wilm ington, DE

19801

RE: State v. Deway

ne McNa ir ID No. 1212003086A

On Defendant ’s Motion fo r New Trial - DENIED

Dear C ounsel:

The Court has reviewed the recent submissions from counsel in Mr. McNair ’s case

in relati on to his req

uest for a new trial. In spit e of the unf ortunate and inappro priate as sertions of defense c ounsel that the trial was a “ sham”

and the reasoning o f this Cour

t in State v. I

rwin is “f lawed, ” the Cour

t does not find the circumstances surrounding Mr. McNair’ s trial and the conduct of the Medical Examiner’ s lab justify a new trial in this matter. 1 As such, Defenda nt’s Moti on for New T rial wil l be denied

.2 Id . at *36. To begin w ith, it is import ant to rec ognize that the form motion filed in th is matter was like those filed in sim ilarly situated drug cases where the trial occurred before the Office of the Chief Medical Exam iner (“OCME ”) misconduct was discovered but the defendant had not been sentenced when the investigation was disclosed. These m

otions asser

t that the dr

ug evidence

lacks the r

equisite scientific reliability for adm ission under Daubert

and Rule 702 of the Delaware Rules of E

vidence. These a

rguments were

considere d in Irwin and were rejected subject to the relevancy lim itations established in that case. However, the Irwin decision doe s make

some significa

nt findings th at the Cour

t believesare rel evant in the conte xt of this Mo tion for N ew Tri al.

First, in this case , there is a m inor deviat ion or discr

epancy in weight between what was submitted to the lab by the police and what was discovered during drug testing. The preliminary w eight of 7 grams, which field tested positive for cocaine, is set forth in the affidavit of probable cause. The OCME chem ist weighe d the m aterial as 6.2 gra ms and confirm ed it was cocaine. The Court believes this is not a significant deviation and alone would not justify a new trial. B ecause of

this finding, the Court f

inds the bri ght line rul e establis hed in Irwin could not hav e been met by D efendant if the ca se had gone to trial af ter the Irwin decision w as render ed. In dis cussing cer

tain case s in which inquiry into the OCME in vestigation

would be relevant, the Court s tated:

Therefore, the Court has decided that if a case wa s sent to the OCME drug lab fo r test ing, t he def ense w ill b e free t o que stio n the State ’s witnesse s or to pres ent evidenc e regard ing the OC ME investigation only if there is e ither evid ence of ta mper ing of the pa ckaging submit ted by t he police o r a discr epancy in weight, volume

or contents f rom t hat descr ibed by the seizin g officer . If evi dence of tampering is not present and there is no discrepancy, the O CME investigati on is not rel evant under Delaw are Rule

of Eviden ce 402 or at least would be misleading and unfair under Rule 403. In such cases, t herefore, evide nce of the investigation should not be introduced

. 2

There i s no evidenc e here to suggest that drug eviden ce envelo pes were opened or tampered with i

n any w ay and

the arre sting offic er, the Defenda nt, and the

chem ist all agree the substanc e was coc aine. W hile the Co urt agree s that m any of the individuals who may have come into contact with Mr. McNair’s evidence w hile atthe OCME

have been the subje ct of m uch controv ersy, that by

itself doe s not manda te a new trial in e very c ase wher

e such contact was pos sible. F rom all accounts, the eviden ce seize d by the police wa s the same evidenc e tested by the lab. As the Court h as stated m any tim es, the c ases deve loped to date have not reflected one where drugs were planted to incrim inate a particular defendant. If anything, the missing drugs from this lab would reflect just the opposite.

What is also unique about this c ase is, t hat, unlike

in most drug case s, defense c ounsel advis ed the Sta te he wa s unwilling to agree t o the chain of custody being established pursuant to 10 Del. C. § 4330. As such, there was significa nt evidence

and argum

ent heard bef

ore the tr ial judge relating to chain of custody . Any

discrepa ncy in t hat chain w as ma de clear to the jur y, bot h through

cross-ex amina

tion and clos ing arguments. T he jury was aw are that there wa s a two day gap betwe en the day

the drugs w ere deliv ered to the lab by the policeand when they

were f irst rec orded in the

OCME c hain of cus tody sy stem. Further , the fact that the chem ist who put t

he prepar ed vials int o the testin g mac hine was a lso not listed w as clear

ly pre sented to th e jury . Whe n considere d in total, this is not a case where significant breaks in the chains were unknown to the jury . It appears these issues were fully explored and would have been available to the jury as they assessed t he credib ility o f the rel evant wit nesses and c onsidered t

heir verd ict.

Next, D efendant argues tha t, since trial, h e learne d of the adm inistrativ e discipline of the assigned chemist, Patricia Phillips, and that such conduct warrants a new trial. In De fendant’s July 27, 2015 submission, he listed three specific i nstances where Ms. Phil lips had received co rrective act ion repor ts. While all three e vents are troublesom

e to the Cou

rt and re flect a d egree of sloppiness, which it f

inds un acc ept abl e, t her e is no th in g t o s ug ges t th at t he s ame conduct o ccurred when Mr. McNair’s drugs were being te sted. Obviously if the State w as aware of this c onduct by Ms. Phill ips it would

have been required

to disclose it. However, the sim ple answer is that such administrative internal discipline issues are

not regula

rly a matt er disclos ed in crim

inal proce edings, an d since the problems at the OCME w ere not discovered until after this trial, there was no hei ghtened sen sitivity to such issues that would invoke a Brady violation or mi sconduct by

the State that would

warra nt a diffe rent deci sion.While the Court has decided not to grant a new trial on the legal issues

presente d, Defendant has al so asked tha t, at a m inimum , the drug s seized be retested . The C ourt belie ves, that to the exte nt the drugs are still available and have not been destroy ed, such r equest is a

reasonab le one. I

n fairnes s to Defendant, the Court will require that the drugs be tested by an independent lab unassociat ed with the

OCME. This woul d at least end any uncertainty tha

t the drugs seize d and teste d were a ctually cocaine a s admi tted by

the Def endant at t

he time of his arrest. Th e Court ta kes this unusu al step bec ause of the significa nt sentence the Defendant is fa cing and bec ause it is f air to sta y that the individuals who m ay hav e touched M r. McN air’s d

rugs are n ot unfam

iliar to th e Court fr

om the numerous motions and hearings held as a result of the OCME investigation. If the drugs, after retesting, are coc aine, the denial of t

he Motion fo r New T

rial wil l be final, and the ca se will be sent to Judge

Medinilla

for sente ncing.

IT IS SO ORDERED.

/s/ William C. Carpen ter, Jr. Judge William C. Ca

rpenter, Jr.

WCCjr:twp

cc: The Honor

able Vivi an Medinill a Prothonotary